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4 



POLITICAL SYSTEMS 
IN TRANSITION 



Zbe Venturis "Wew THUorlO Settee 

W. F. WiLLOUGHBY, GENERAL EdITOR 



THE NEW WORLD OF SCIENCE 
Edited by Robert M. Yerkes 

POLITICAL SYSTEMS IN TRAN- 
SITION 

By Charles G. Fenwick 

THE WORKERS AT WAR 

By Frank Julian Warne 



Other titles will be published later 



Ubc Century *Wew Morl& Series 

POLITICAL SYSTEMS 
IN TRANSITION 

WAR-TIME AND AFTER 



BY 

CHARLES G. FENWICK 

Professor of Political Science, Bryn Mawr Collegs 




NEW YORK 
THE CENTURY CO. 

1920 



fc^"^ 






Copyright, 1920, by 
The Centubt Co. 



NOV 10 1920 

100 

g)CI.A604003 



\, 



W. W. WILLOUGHBY 
WITH SINCERE REGARD 



PREFACE 

Never perhaps have the hopes of democratic idealism been 
higher than on the day of the signing of the armistice which 
brought the World War to a close. It seemed as if the prom- 
ised land of international cooperation and domestic regenera- 
tion were in sight, and that it needed but a simple readjustment 
of abnormal conditions to mark the inauguration of a new 
era. Autocracy had been overthrown and humiliated. Ger- 
many and Austria were in the throes of a revolution, Turkey 
was at the mercy of the Allies, and Russia, though for the 
moment in a state of confusion, was forever freed of the 
despotic rule of the Czar and his court. By contrast, the vic- 
torious democracies, under the inspiration of the ideals aroused 
by the war, were prepared to take in hand the conditions of 
their national life and reconstruct their political systems in 
accordance with those fundamental principles of justice which 
had been evoked against their common enemy. The world 
had been made safe for democracy; democracy was now to 
prove itself worthy of the sacrifices made in its name. 

The anniversary of the signing of the armistice was a day 
of complete disillusionment. Autocracy was still overthrown, 
but it seemed doubtful whether in some of the states it had 
not been succeeded by a dictatorship of the proletariat far 
more dangerous than its own regime had been. Germany, with 
its new democratic constitution, gave some promise of sta- 
bility; but it was believed by many that there had been no 
change of heart on the part of the German people, and that 
the conception of state morality which had characterized the 
Germany of 1914 persisted as strongly as ever under the rule 
of the people. Austria and Hungary were reduced to the 
point of utter national exhaustion, while Russia had revived 
for the time the despotism of the Czar in the reaction of its 
more radical elements againsti counter-revolutionary move- 
ments and the intervention of the Allied armies. On the other 



Vlll 



PREFACE 



hand the democratic governments had apparently made no 
progress whatever towards the fulfillment of the hopes of 
reconstruction and reform. France and Italy were wholly 
absorbed in the efifort to consolidate the fruits of victory ; Great 
Britain was in the hands of a Parliament which had been elected 
at an inopportune time, and which was intent upon maintain- 
ing imperial interests and seemed not to be seriously concerned 
with the task of improving social conditions at home. In the 
United States the contest between a Democratic President and 
a Republican Senate had brought the machinery of govern- 
ment to a deadlock, and practical problems of domestic read- 
justment stood neglected in the presence of artificial differences 
created by the struggle for party control. The old order not 
only had not changed, but it seemed to be in many respects 
more strongly entrenched than ever. Judging by actual ac- 
complishments there was little to show that there was in the 
minds of statesmen any higher purpose than to return to tha 
accustomed ways of 1914. 

If in outward appearance, however, there was and is still 
but little change in the political systems of the great demo- 
cratic nations, one has only to look beneath the surface to find 
new forces at work which may in time fulfil the high ideals 
which the war called forth. While Germany, Austria, Hun- 
gary, and Russia are working out with varying degrees of in- 
ternal disturbance their new forms of democratic government, 
the older democratic nations are passing through a critical 
phase in their history. The changes which they underwent 
in adjusting their governments to the demands of war, and 
the further changes required to place their governments again 
upon a peace basis, have brought to the surface many of the 
fundamental principles of democracy which had become buried 
beneath the routine of normal political life. The task of trans- 
forming a whole nation into an efficient fighting machine made 
it necessary to demand sacrifices from the individual citizen 
which could only be obtained in full measure by an appeal to 
the noblest motives of citizenship. But the emphasis laid upon 



PREFACE ix 

duty to the state naturally led to the inquiry whether the state 
in its existing form was worthy of the sacrifice which it de- 
manded. As an organization for the promotion of freedom 
and justice, true to its purpose, the state might well ask for 
all that the citizen could give to preserve it. But if the state 
were in any way the instrument of special privilege for the 
few as against the interests of the many, if the state" fostered 
an industrial autocracy which made political democracy mean- 
ingless, if the state defeated its own purpose by preventing 
the free expression of public opinion and denying the equality 
of rights which it was intended to protect and maintain, then 
its absolute claim upon the life and property of the citizen was 
far less convincing than had been assumed. The issues thus 
raised are still a powerful undercurrent in American political 
life, and in somewhat different form in the political life of 
Great Britain, of France and of Italy. 

In addition to this inquiry into fundamental principles fur- 
ther questions are being put as to the organization of the 
state and the scope of the functions it is to perform. In the 
United States the war has made it clear to all that there are 
serious defects in the machinery of the Government; while the 
emergency in which those defects were manifested has im- 
pressed upon us in a forcible way the need of radical amend- 
ments to our constitutional system. Apart from the experi- 
ence of the war it is a common observation that modem democ- 
racy, in growing more and more complex in its machinery, 
tends of necessity to defeat its object of securing freedom 
and justice unless constant readjustments are made to offset 
the control of special groups and factions. In like manner 
the necessity which the war created of bringing under national 
control the production and distribution of essential supplies 
has raised the issue of permanent government control wher- 
ever this is necessary to protect the public against artificial 
restraints of trade. At the same time critical strikes in the 
great industrial centers have called for the intervention of the 
Government between labor and capital in the interest of safe- 



X PREFACE 

guarding the community as a whole. Thus the functions of 
the State have been greatly enlarged, and there is every pros- 
pect that while still repudiating Socialism as a theory the State 
will before long have put into practice many of its more mod- 
erate principles. Lastly, the war has raised a new issue hith- 
erto outside the range of practical politics. The problem of 
international organization has become the most pressing ques- 
tion upon the program of reconstruction. The participation 
of the Unted States in a pennanent association of the nations 
must, if any practical results are to be obtained from such 
cooperation, affect profoundly the conduct of our foreign re- 
lations and in due time have its reactions upon domestc af- 
fairs as well. No assertions of a traditional isolation can long 
hold out against the logic of the demand for " a governed 
world." 

In view of the urgency and importance of the issues thus 
raised it cannot be said that even the democratic nations have 
escaped from the war with their political systems unshaken 
by the great conflict. Their constitutions may be for the 
time intact, but they have entered upon a period of transition 
in which it is to be determined whether democracy can hold 
its own not only against the enemy from without but against 
the disintegrating forces from within. The present study is 
an attempt to survey the changes brought about by the war in 
the governments of the great nations, and particularly in that 
of the United States, and in so doing to exhibit, by comparison 
and contrast, the relative strength and weakness of the several 
political systems and the probable lines of future reconstruc- 
tion. In the case of the United States special attention has 
been given to the constitutional questions involved in the ad- 
justment of the government to the demands of the war, both 
for the purpose of making clear the principles involved in the 
measures taken by the Government and in order to emphasize 
the peculiar problems of reorganization with which the Govern- 
m.ent is confronted. 

The writer is indebted to the general editor of the present 
series, Mr. W. F. Willoughby, not only for his careful revision 



PREFACE 



XI 



of the manuscript, but for many helpful suggestions with re- 
gard to the substance of the volume. The publication by Mr. 
Willoughby of a study of " Government Organization in War 
Time and After" made it possible for the writer to omit 
numerous details of War Administration in the United States 
and to concentrate upon the legal and political aspects of the 
problem. Needless to say the general editor is not responsible 
for the views expressed, in many cases somewhat tentatively, 
in the chapters dealing with problems of reconstruction. 

C. G. F. 
Bryn Mawr. 
April, 1920, 



CONTENTS 



PART I POLITICAL IDEALS AND DEMANDS OF WAR 

PAGE 

Chapter I Introduction. War a Test of Democratic 

Government 3 

The war a means of political education 3 

An opportunity to test democratic government .... 4 

The war a conflict of political ideals 5 

Democracy and efficient government 7 

Efficiency in time of war 8 

Value of the tests of war for the work of reconstruction . . 9 

Chapter II The Constitutions of the Great Nations on 

THE Eve OF the World War 11 

Political theory a part of the constitution 11 

Individual character of democracy in different countries . . 12 

Theory of democracy in the United States 13 

Self-government of citizens and self-determination of groups 14 

Development of the democratic theory 15 

Moral character of the democratic state ....... 16 

American political institutions 18 

The powers of the Federal Government 18 

The nature of a written constitution. Restrictions upon the 

agents of government 20 

The principle of checks and balances 21 

Criticism of the principle 22 

The protection of individual rights 23 

Similarity of war problems in Great Britain and in the United 

States 24 

Democracy in Great Britain. Representative government . . 24 

The rights of citizens 26 

The British Constitution 27 

Elastic character of the British Constitution 28 

Popular control of the government 29 

Ideal of French democracy 30 

Character of the French Constitution . 31 

Checks and balances in the French Government .... 32 

Instability pf French cabinets ^3 

Centralization of the French administrative system ... 34 

The Prussian theory of government 35 

The Gerjaap Constitution in 1^4 36 

Powders of the Kaiser 37 

xiii 



xiv CONTENTS 

PAGE 

Influence of Prussia in the Bundesrat 38 

Democratic character of the Reichstag ....... 39 

The Constitution of Russia in 1914. Rights of citizens . . 40 

Organization of the government 41 

PART II CHANGES BROUGHT ABOUT BY THE WAR 
IN THE POLITICAL INSTITUTIONS OF 
EUROPEAN COUNTRIES. COMPARISONS 
AND CONTRASTS 

Chapter III Countries with Autocratic Governments . 45 

War a contest between whole peoples 45 

Organization essential to success 45 

Initial advantage possessed by autocracy 46 

The menace of autocracy 47 

German state socialism an advantage in time of war ... 48 

Effect of paternalistic government 49 

Control of industrial life 50 

Advantages of an irresponsible government 51 

Counter-balancing disadvantages 51 

The new German Government 53 

The problem of federalism 55 

Organization of the government 56 

The President of the Repubhc 56 

The protection of fundamental rights. Industrial councils . 57 

General character of the new constitution 58 

The government of Austria-Hungary 59 

Dangers attending the break-up of Austria-Hungary ... 60 

The protection of minorities 61 

Conditions imposed by the Peace Conference 62 

Difficulties of the situation 63 

The fall of autocracy in Russia 63^ 

Political importance of the Russian revolution 64 

The heritage of the new government 65 

Local government before the revolution 66 

The electoral system of the Duma 67 

Organization of the new Soviet Government 68 

Successive congresses of local Soviets 68 

The central government of Russia 70 

Indirect versus direct control of representatives .... 70 
Distinction between the Soviet organization and Bolshevist 

principles 72 

Federal character of the future Soviet Republic .... 7^ 

Chapter IV Countries with Democratic Governments . 74 

Democracy at a disadvantage in time of war. Case of Great 

Britain 74 

British cabinet government and war policies 75 

The Liberal Cabinet 76 



CONTENTS XV 

PAGE 

The Coalition Cabinet ^^ 

The War Cabinet • • • 78 

Attitude of public opinion towards tlie War Cabinet . . 79 

Extension of the legal duration of Parliament .... 80 

Parliament during the war 81 

The elections of 1918 82 

Call for reform 83 

Proposals of reconstruction 85 

Substantive war legislation 86 

Control over industrial life 87 

Government control of the railways 88 

Munitions of war 88 

The Government and Labor 89 

The Defense of the Realm Act 90 

Scope of the act 90 

Military law extended to civilians 92 

Problems of reconstruction 92 

The extension of suffrage 93 

The new Labor Party 94 

Its reconstruction program 94 

Program of the Ministry of Reconstruction 96 

Value to the United States of political experiments in Great 

Britain 98 

Changes in the Constitution of the British Empire ... 99 

Federalism versus autonomy 100 

The Imperial Commonwealth and a League of Nations . 102 

War cabinets in France 103 

Relation of cabinet changes to the national morale . . . 105 

Parliamentary government during the war 105 



PART III CHANGES IN THE POLITICAL INSTITU- 
TIONS OF THE UNITED STATES 

Chapter V The War and the Constitution iii 

Constitutional unpreparedness of the United States . . . . ill 
The Constitution not solely responsible for the shortcomings 

of the Government 112 

Difficulties due to traditions of individualism 113 

Difficulties due to fundamental personal rights .... 114 

The Constitution in time of war 115 

Congress as the legislature of a sovereign state . . . . ii6 

War powers without restrictions 118 

Inferences from the power "to raise and support armies" 119 

War powers and state rights 120 

Individual rights in time of war 120 

Chapter VI War Powers of the President 123 

Powers of government and administrative organization sep- 
arately treated 123 

The President as commander-in-chief of the army and navy 123 



xvi CONTENTS 

PAGE 

The President's authority over the state militia .... 125 
Political powers assumed by the President during the Civil 

War 126 

Political powers exercised by President Wilson .... 127 

Grounds of war and objects sought by it 128 

The recognition of new states 129 

The President as the agent of Congress 131 

Power of the President to issue regulations 131 

Executive acts without warrant from Congress .... 133 

Wide scope of the executive power 134 

The Committee on Public Information 135 

Educational work of the committee 136 

Criticism of the work of the comm.ittee 137 

Need of an agency of general information on political 

problems 138 

Chapter VII Emergency Legislation Adopted by Congress 140 

Legislation in aid of the mobilization of the national resources. 

The Selective Service Act 140 

• Verdict of the Supreme Court upon its constitutionality . 141 

Comparison with the Draft xA.ct of 1863 142 

Legislation for the protection of men in the military service . 143 

Scope of the Civil Relief Act 145 

The War Risk Insurance Act 146 

Provisions for allotments, allowances, and compensation . 146 

Insurance features of the law 148 

Mobilization of material resources 149 

The production of munitions 150 

Control over shipbuilding 151 

Control over food products and fuel supplies 152 

Prohibition legislation under guise of food conservation . 153 

Constitutionality of the War-time Prohibition Act . . . 154 

Constitutionality of the Volstead Act 156 

Activities of the Food Administration 156 

Advantages of voluntary agencies 157 

Activities of the Fuel Administration 158 

Government operation of the railways 159 

The bargain between the Government and the railways . . 160 

Government operation of telegraph and telephone lines . . 161 

War industries and the problem of labor 162 

Government agencies for the settlement of disputes . . . 163 

The President's Mediation Commission 164 

The Government as an employer of labor 165 

Boards to adjust disputes and tO' determine policies . . . 165 

Absence of compulsion from control over labor .... 166 

Legislation to prevent interference with the conduct of the war 168 

The Espionage Act 168 

Restrictions upon freedom of speech and of the press . 169 

The Sedition Act 170 

Constitutionality of the acts 171 

Bolitical justlficaticm of the Sedition Act i^ 

Breed scope of the Sedition Act if 4 



CONTENTS xvii 

PAGE 

Exclusion of obnoxious publications from the mails . . . 176 

Constitutionality of a press censorship 176 

The War Materials Destruction Act 178 

The Trading with the Enemy Act 178 

The problem of the enemy alien 179 

Control over persons and property of enemy aliens . . 180 

Functions of the Alien Property Custodian 181 

Comprehensiveness of the war powers of the Government . . 183 

Chapter VIII Changes in the Organization of the Gov- 
ernment 184 

The Executive Department in time of war 184 

The President a " one-man " executive 185 

Extent of power he may exercise 185 

The President and the administrative departments . . . 180 

The Council of National Defense 188 

Functions performed by the Council 189 

Criticism of the work of the Council 190 

Proposed Ministry of Alunitions 191 

The proposed War Cabinet 192 

The Overman Act 193 

The surrender of congressional powers 194 

Lack of cooperation between Congress and the Executive . . 196 

Position of the President as political leader 197 

Personal responsibility assumed by President Wilson . . 198 

Impediments resulting from the committee system in Congress 199 

The system of control through licences 200 

Control through subsidiary corporations 201 

Chapter IX The Separate State Governments. New 

Legislation and New Administrative Activities . . . 203 

The relation of the separate state governments to the war . 203 
Subordination of state authority to federal jurisdiction over 

persons 204 

Loss of state control over railroads 205 

Encroachments of the Food and Fuel Control Act . . . 206 

Federal prohibition legislation and the States .... 207 

Enlarged scope of state activities 209 

Organization of reserve militia and state constabularies . 210 
State aid in the administration of the Selective Service 

Act 211 

Miscellaneous laws in aid of men in service 213 

Laws in aid of food and fuel conservation 214 

Laws to meet labor problems 215 

Laws to assist in Americanizing immigrants 216 

State espionage and sedition laws 218 

Laws to assist in controlling enemy sympathizers .... 219 

Laws directed against syndicalists and other radical groups 220 

State councils of defense 221 

Composition and powers of the state councils .... 222 



xviii CONTENTS 

PAGE 

Work of the State Councils Section of the Council of 

National Defense 223 

Conferences of state governors 223 

Duplication of effort by federal and state governments . . 225 

PART IV PROBLEMS OF RECONSTRUCTION IN 
THE UNITED STATES RAISED BY THE WAR 

Chapter X New Ideals of Democracy 229 

General effect of the war upon political institutions .... 229 

The principle of self-determination 230 

Its connection with the ideaj of democracy 231 

The appeal to democratic ideals during the war 232 

Application of the ideal to domestic conditions .... 233 

The demand for industrial democracy 235 

Forms of industrial democracy 236 

Proposals of the Industrial Conference 238 

Radical phases of industrial democracy 239 

Necessity of experimental steps 241 

Democracy and the distribution of wealth 243 

Constructive contribution of the war to democracy .... 244 

The strengthening of the bond of national unity .... 245 

New emphasis upon the duties of citizenship 246 

The responsibilities of citizenship 247 

Voluntary associations as public agents 249 

Rights of the community against organized minorities . . 250 

Democracy and freedom of speech 251 

Democratic control of foreign affairs 253 

Chapter XI The Program of Political Reconstruction . 255 

The problem of centralization versus decentralization . . . 256 

Permanent place of the States in the Federal Government . 257 

New powers needed by the Federal Government .... 258 

Control over profiteering 259 

Control over nation-wide strikes 260 

Control over the raw materials of industry 261 

Surrender of state control over the instrumentalities of 

commerce 262 

Cooperation as a substitute for constitutional unity . . . 263 

The sphere of local autonomy 265 

The problem of federation 266 

Reorganization of the Federal Government 267 

Relations between Congress and the President 268 

Radical changes undesirable 269 

Proposal that the Executive present measures to Congress 270 

Presidential initiative in legislation 271 

Congressional initiative in theory and in practice . . . 272 

Proposed plan of a national budget 27s 

Transfer of legislative initiative to the President . . . 276 



CONTENTS xix 

PAGE 

Possible deadlock between President and Congress of dif- 
ferent political parties 277 

Executive control over steps leading to war 279 

Claims of Congress to joint control . . . . . . . 280 

Difficulties of popular control over foreign policies . . 2S1 

The extension of the functions of government 282 

Control over railroads and trusts 283 

Governmental control during the war 284 

Effect of war measures upon peace policies 285 

Railway reorganization 286 

Government ownership as a solution 287 

Private ownership with government control 288 

The proposal of the railway brotherhoods. The " Plumb 

Plan " . 290 

Private versus public operation of the telegraph and tele- 
phone lines 291 

Government ownership of the coal mines 293 

Government operation of the merchant marine .... 294 

Government control over labor. Compulsory arbitration . 295 

Chapter XII The Program of International Recon- 
struction 298 

Effect of the war upon international relations. Changed posi- 
tion of the United States 298 

The principle of state sovereignty 299 

National armaments and international anarchy 301 

Collective responsibility under a League of Nations . . . 302 
Conditions of success of an international organization to main- 
tain peace 304 

Restrictions upon " sovereignty " 305 

The need of international legislation 306 

The scope of arbitration 308 

Objections to compulsory arbitration 309 

National armaments and international execution . . . .311 

Primary conditions of international organization 313 

The conversion of public opinion into law 31S 

Index 317 



PART I 
POLITICAL IDEALS AND THE DEMANDS OF WAR 



POLITICAL SYSTEMS IN 
TRANSITION 

CHAPTER I 

INTRODUCTION. WAR A TEST OF DEMOCRATIC GOVERNMENT 

The war a means of political education. The four years 
of the World War were not only an education for the people 
of all nations in questions of foreign policy and international 
relationships, but a means of bringing the great masses of each 
country into touch with the domestic institutions of other coun- 
tries and making them acquainted with forms of government 
hitherto unknown to them. If the Triple Alliance and the 
Triple Entente came to be freely discussed in the daily papers, 
if Belgium and Serbia came to be household words, and 
Czechoslovakia a name which even the unlearned might spell, 
no less striking a growth took place in our popular understand- 
ing of absolute and constitutional monarchies, of parliaments 
and cabinets, of federal and unitary states, and of political 
parties and party control. Many to whom the Government of 
Germany meant no more than the person of the Kaiser were 
initiated into the functions of the Reichstag and the Bundesrat, 
and were made to understand how a government can have many 
of the outward features of a democracy and yet be in its essen- 
tial character an autocracy. Many to whom the existence of 
a king as head of the state indicated a degree of autocracy in 
the government came to learn that constitutional monarchs may 
have so little actual political authority as to be no more than 
figure heads, symbolizing the unity and traditions of the state, 
but powerless to affect its policies. Parliaments and cabinets 

3 



4 POLITICAL SYSTEMS IN TRANSITION 

became as familiar as a Congress and President, and the rise 
and fall of governments in response to parliamentary votes 
of want of confidence as natural an event as the fixed terms of 
our own representatives. Even the technicalities of party- 
politics came to be understood in some measure, and discussions 
were common of coalition ministries and of the radical and 
moderate wings of republican and of socialist groups. 

An opportunity to test democratic government. While the 
war thus enlarged the range of our political knowledge, it also 
enabled us to make comparisons at every turn between our 
own and other governments, and to estimate the value of our 
own institutions in the light of the experience of other nations 
with different forms of political organization. Primarily we 
matched democracy against autocracy, both in respect to the 
ideals of each form of government and in respect to the power 
of each to command the forces of a united nation to accomplish 
its purposes. Were German political ideals, apart from the 
policies that were being pursued by the German Government, 
worthy to be compared with those of the Allied powers ? How 
far were these ideals responsible for the practical unanimity 
with which the German people supported their government? 
What was the peculiar character of the political organization 
which made Germany so powerful on the field of battle? Was 
that organization necessarily autocratic or only accidentally so? 
But while marking these contrasts, we at the same time made 
comparisons between the democratic nations themselves, if not 
in respect to national ideals, at least in respect to the rela- 
tive advantages and disadvantages of their particular forms 
of democratic government. Was the cabinet system of gov- 
ernment, which made the executive department responsible to 
the legislative and enabled the latter to enforce its demand for 
an efficient administration, essentially better than the system 
of elected officials whose office was secure until the normal 
expiration of its fixed term? Was the unity of government 
which prevailed in Great Britain and France an advantage in 
time of war as against the federal system which prevailed in 



A TEST OF DEMOCRATIC GOVERNMENT 5 

the United States and Germany? The answers to these and 
other questions were reached not by theoretical discussion, but 
by the actual observation of concrete conditions. The public 
at large went to school, as it were, in that most valuable of all 
training schools — the experimental laboratory of practical 
politics. 

The war a conflict of political ideals. The task of the his- 
torian of the World War in attempting to estimate how far the 
political ideals of each state contributed to a justification of its 
objects in the war and to the creation of the spirit of national 
unity which it brought to the support of those objects will 
not be an easy one. It is a simple solution to quote a variety 
of German authors and show that the German state was built 
upon the principle that the state is the embodiment of force, 
and that such force or might is its own justification and may 
be resorted to when necessary to further national development. 
On the other hand, it can be shown that both the British and 
the French political traditions repudiate any such worship of 
the state, and insist that governments are bound by the same 
moral obligations by which the individual citizens of the state 
are bound. But the issue lies much deeper, and no just con- 
clusions can be reached by a comparison of political ideals 
without at the same time taking into account the economic 
forces at work in creating the rivalry of nations. On both 
sides there had been for a generation the sharpest competition 
for the control of foreign markets and of the raw materials of 
industry. A vital factor in the situation, moreover, was the 
anarchical character of the whole international system, which 
threw upon each state the duty of protecting its national rights 
by its own armed force. But while these conditions of economic 
rivalry and of international lawlessness provided the motive 
and the occasion for the outbreak of the war, it nevertheless re- 
mains true that the political ideals of Germany played an im- 
portant part in determining its response to the economic mo- 
tive and in leading it to precipitate the war which international 
law had done too little to prevent. On the other hand, while 



6 POLITICAL SYSTEMS IN TRANSITION 

self-defense was undoubtedly the ulterior motive leading the 
British Government to take part in the war, there is no ques- 
tion but that the political ideals of self-government in Great 
Britain, and the conception of national morality as of the same 
value as individual moraHty, made it possible for the govern- 
ment to obtain the support of a large part of the body politic 
which might otherwise have been for the time indifferent. 
Those who failed to see the menace to Great Britain of a 
triumphant Germany responded to the appeal to vindicate their 
pledged word to defend the integrity of Belgium. This con- 
flict of national ideals became all the more marked when the 
proposal was made in December, 191 6, that the powers at war 
should state openly the terms upon which they were ready to 
conclude peace.^ 

The case of the United States was somewhat different. 
There was no immediate danger to its territory in consequence 
of a German victory as in the case of Great Britain. The pro- 
clamation of neutrality in August, 1914, was but the expres- 
sion of the traditional attitude of the United States towards 
the wars of Europe. But the breach of faith by Germany in 
invading Belgium and the methods of military occupation by 
which it was accompanied could not but have their effect in 
awakening sympathy for the cause of the Allies. This sym- 
pathy grew with each month of the war, but it is doubtful 
whether it would have been of itself sufficient to make the 
United States depart from its neutral position had not the 
German Government committed direct wrongs against us and 
forced a declaration of war. Once war was declared, upon 
whatever technical grounds, the conflict between the two coun- 
tries became at once a conflict of political ideals. " The world 
must be made safe for democracy." This phrase was singled 
out from the address of the President to Congress and became 

^ No mention is made of France because the imperative necessity of 
self-defense left no room for the influence of political ideals in deter- 
mining the response of her people to the war. In Russia the unques- 
tioning loyalty of the masses responded blindly to the appeal to come to 
the aid of their Slavic brethren in Serbia. 



A TEST OF DEMOCRATIC GOVERNMENT 7 

thenceforth, as it were, the national battle cry. It is doubtful 
whether many of those who came from factory and farm in re- 
sponse to the call to arms could have defined in any precise 
manner the meaning of those words; but one and all felt as 
by instinct that they symbolized the vital issue between Ger- 
many and the United States. The principles of political free- 
dom which were part of the original inheritance of the United 
States, and which had taken shape in its constitution and in its 
legal traditions, were emphasized and reiterated in order to 
make clear the contrast with the irresponsible government of 
Germany and its autocratic military system. If the deeds of 
the enemy were doubly evil because of evil principles offered 
in defense of them, then it was of fundamental importance to 
set forth the higher standard of conduct demanded by the 
principles of democracy. 

Democracy and efficient government. If the war involved 
in principle a conflict of political ideals, it was in actual reality 
a conflict of organized peoples. The chief military lesson of 
the war is said to be the fact that war is no longer merely a 
contest between the armed forces of the two states, but has 
come to be a struggle between the citizen body of one nation 
and that of another. The fighting strength of an army is now 
seen to depend upon the industrial resources of the nation, 
upon the extent of its food supplies, upon the directive ability 
which can be enlisted to coordinate these materials, and upon 
those moral qualities of the people which determine the extent 
of the sacrifices they will be willing to make to the cause. In 
consequence, the fundamental political problem raised by the 
war was the question of the efficiency of a democratic govern- 
ment when faced with the necessity of bringing all the forces 
of the nation to bear upon the single object of overcoming the 
enemy. In times of peace democracy may be willing to sacri- 
fice some measure of efficiency for the sake of the moral ad- 
vantages attaching to self-government. Efficiency is not the 
primary object of government in a democracy. Law and 
order must, indeed, be maintained and certain positive bene- 



8 POLITICAL SYSTEMS IN TRANSITION 

fits be secured to the citizen body ; but democracy may well 
be content to put up with a limited degree of mismanagement 
and extravagance on the part of incompetent officials for the 
sake of the educational advantages involved in the electoral 
process. Liberty and individual initiative are to be regarded 
as positive goods, to be given presumptive right of way except 
where there is clear need of a restriction upon them for the 
common good. As a result, democracy, especially in the United 
States, has often denied itself a fuller measure of the advan- 
tages of improved organization lest in seeking to obtain them 
it should unduly curtail that individual initiative and freedom 
of action to which it gives first place.^ 

Efficiency in time of war. But though democracy may be 
willing to sacrifice efficiency to self-government in time of peace, 
it cannot do so in time of war. The prime object of govern- 
ment is then the preservation of the national existence with all 
that it connotes indirectly for the good of the individual citi- 
zen. For the sake of this high purpose it may be necessary 
to subordinate democracy to efficiency and to suspend tem- 
porarily those very principles of liberty in the individual which 
the war is fought to maintain for the nation as a whole. The 
question thus arises : how did democracy compare with autoc- 
racy in meeting the problem of organizing the nation and 
forcing its citizen body to do that which they were not ac- 
customed by long training to do? Was the transition from a 
government in which the principles of democracy had prior- 
ity to one in which efficiency had priority accomplished with- 
out serious loss? If autocracy had an advantage in respect to 
preparation and rapidity of attack, was this initial advantage 
overcome in due time by democracy exhibiting greater stay- 

1 It will not be inferred, of course, that it is not possible to secure 
greater efficiency in the government of a democracy without loss of 
liberty. Much of the wastefulness and inefficiency in American gov- 
ernment is due to indifference on the part of the public and to lack 
of energy in seeking an improved system. A public indifferent to the 
acts of its elected officials may be in actual fact as little self-governing 
as a community governed by the appointees of a czar. 



A TEST OF DEMOCRATIC GOVERNMENT 9 

ing qualities in its people? In respect to the organization of 
government as a fighting machine, what special difficulties con- 
fronted the United States at its entrance into the war by reason 
of its more rigid and decentralized from of constitutional gov- 
ernment? Were these difficulties as great, or greater, in the 
case of Great Britain with its unitary parliament and cabinet 
form of government? What changes were effected in the 
Government of the United States to enable it to meet the de- 
mands of the war in a more adequate manner? 

Value of the tests of war for the work of reconstruction. 
The answers to these and other questions raised in the attempt 
of a democratic government to adapt itself to a war of ex- 
haustion will throw much light upon the inherent strength and 
weaknesses of the American Government, and will enable us to 
distinguish between what is of permanent and intrinsic value in 
our form of government and the accidental corruption and mis- 
management which have at times accompanied its practical 
working. We shall find that in some respects our ideals them- 
selves have been enlarged by the war and that in other respects 
they have been, temporarily it is to be hoped, contracted. Parts 
of the machinery of our government will be found to have 
worked with a degree of smoothness and power which is above 
criticism; while other parts have exhibited defects which it is 
important for us to remedy. Is it possible to attain greater 
efficiency in our government without sacrifice of those ele- 
ments of democracy which are indispensable? In attempting 
to view all sides of the question the experience of other gov- 
ernments has been drawn upon in the following pages wher- 
ever the problem involved was one common to all states. 
Even in their downfall the states of Germany, Austria-Hun- 
gary, and Russia offer valuable material for comparison. The 
experience of Great Britain in particular, as being most nearly 
like the United States in its political traditions and indus- 
trial organzation, has been described at some length, and it 
will be found that there is much in common in the problems 
confronting the two countries. The period of reconstruction 



lo POLITICAL SYSTEMS IN TRANSITION 

which we have now entered upon is making demands upon us 
to prove the value of our cherished traditions. Such of them 
as cannot meet the needs of the new era must be discarded as 
outworn. In this deHcate task of breaking here and there with 
the customs of the past, the lessons of the war will do much 
to guide us in reaching a sound decision. 



CHAPTER II 

THE CONSTITUTIONS OF THE GREAT NATIONS ON THE EVE OF 
THE WORLD WAR 

Political theory a part of the constitution. It is clear from 
the questions raised in the preceding chapter that we should 
be missing one of the chief lessons of the war for the develop- 
ment of political institutions if we were to confine our attention 
merely to the structural changes which it brought about in the 
governments that were involved in it. It needs only a super- 
ficial study of the problem of government to observe that a 
government is something more than the mere organization of 
the departments or bodies through which laws are enacted and 
carried into eflFect. As a recent writer has said : " It is of the 
essence of all conscious government that its structure is planned 
or contrived on some theory of operation, or again involves 
some theory as to the nature of man and the nature of govern- 
ment." ^ In consequence it is a common admonition that the 
institutions of a country must be studied in the light of the 
political principles upon which they were founded and the 
traditions which have guided their development. According 
to the spirit that animates them the same set of political insti- 
tutions may be an instrument of freedom in one country and an 
instrument of oppression in another. A government founded 
upon principles of democracy may, indeed, at times lose sight of 
those principles in the turmoil of party conflicts to which pop- 
ular government at times gives rise ; it may be forced frankly 
to abandon some of them in time of great emergency ; but the 
constant presence of those principles in the background of the 
political life of the country protects the people against a per- 
manent encroachment upon their liberties, and insures a re- 

1 A, G. Sedgwick, " The Democratic Mistake," p. 30. 

II 



12 POLITICAL SYSTEMS IN TRANSITION 

turn to normal constitutional relations when the exceptional 
conditions disappear. This recognition of political theory as 
a part of the constitution is particularly important in the United 
States, whose government was built up upon complex founda- 
tions deliberately planned in order to meet abstract concep- 
tions as well as concrete conditions. In the following sketch 
of the constitutions of the United States, Great Britain, France, 
Germany, and Russia, it will be possible to present only the 
dominant principles underlying their constitutions, with refer- 
ence in each instance to those which were more directly affected 
by the changes brought about by the war. 

Individual character of democracy in different countries. 
The individual character of the theory of democracy in the 
United States and in the leading states of Europe is as marked 
as is the individuality of their divergent forms of government. 
Each nation has seen the light from its own point of vantage 
and has struggled towards it by methods dictated by its own 
distinct national traits. The unity of purpose and of action 
which dominated the governments of the Allied powers during 
the last year of the conflict was interpreted by many as in- 
dicating a close similarity of national ideals. A war of de- 
mocracy against autocracy seemed to imply a common concep- 
tion of democracy among its champions. But in the year that 
has elapsed since the signing of the armistice it has become more 
evident that national characteristics have been but little changed, 
and that each of the nations will continue to work out its own 
conception of free government in accordance with its historic 
traditions.^ The reconciliation between freedom and law, be- 
tween individual rights and justice, which marks the triumph 
of modern democratic government, is not to be brought about 
by imposing upon one country the political institutions of an- 
other. Freedom is a relative term, and must be judged in the 
light of the aspirations of a particular people. Law is an 
artificial restraint which has developed into a highly complex 

1 The point is developed in detail in a rscent volume on " Recon- 
struction and National Life," by C. F. Lavell. 



ON THE EVE OF THE WORLD WAR 13 

system adjusted to the needs of each country by the traditions 
of centuries. Individual rights and general justice must be 
viewed in the light of changing economic conditions as well as 
of political status. But while this individuality of national de- 
velopment is an undoubted fact, it is also true that the ex- 
perience of one country in meeting its own peculiar problems 
may be of great service to another. American democracy has 
its weaknesses as well as its strength ; and while it held aloft the 
torch of free government to Europe during the nineteenth cen- 
tury, it has lessons of its own to learn from the Europe of the 
twentieth century. A wise conservatism will be led by the suc- 
cess of new methods in other countries to consider a like reform 
in its own government ; a wise radicalism will be led by the 
failure of new methods in other countries to question the prac- 
tical worth of similar proposals of its own. These comparisons 
between the democracy of the old world and that of the new 
came to have greater value when the rigorous test of the war 
revealed flaws in the machinery of the several governments 
which might otherwise have remained unnoticed. It will help 
us, therefore, to interpret the characteristic features of Ameri- 
can democracy and to understand the significance of the 
changes in its political institutions made necessary by the war, 
if, within the limits of space allowed, the underlying principles 
of government in the leading countries be placed in contrast, 
both in respect to the theory involved and in respect to the 
practical application of the theory in the working machinery of 
the state. 

Theory of democracy in the United States. Looking first 
at democracy as a theory, distinct from the form of political 
organization by which its adherents sought to give expression to 
that ideal, we may, at the risk of covering familiar ground, 
point out some of the more fundamental principles by which 
the people of the United States have been guided in the course 
of their development down to the eve of the World War. 
When the American colonies found themselves faced with the 
necessity of justifying the radical action they were taking in 



14 POLITICAL SYSTEMS IN TRANSITION 

separating themselves from their mother country they put forth 
a document which was destined to mark a new epoch in the 
history of democratic government. The Declaration of Inde- 
pendence of 1776 contained a theory of government which has 
become such a commonplace in the modern world that it is dif- 
ficult for us to realize that it could have ever been considered 
a radical doctrine. Governments are instituted among men in 
order to secure certain unalienable rights with which men are 
endowed by their Creator and which therefore belong to men 
prior to the establishment of governments. In consequence 
governments derive their just powers only from the consent 
of the governed. 

Self-government of citizens and self-determination of 
groups. Two distinct political principles are here involved: 
in the first place self-government is asserted as a right belong- 
ing to the citizens of the State as such. Good government had 
long been recognized, by political writers of every school, as 
an inherent right of man ; but good government did not neces- 
sarily imply government by rulers of one's own choice. 
Underlying this right of self-government is the theory that 
the relationship between the members of the State and their 
Government is purely contractual. Governments are the agents 
of the people for the performance of the functions of govern- 
ment, and only in so far as they fulfil the duties assigned to 
them have they any claim upon the support of the people. 
From another point of view governments are trustees to whom 
the public welfare and the public funds have been entrusted, 
to be administered for the benefit of the citizens at large.^ 

In the second place the Declaration of Independence asserted 
the principle that not only may the people of the State as an 
entirety change their agents of government, but a definite 

1 These ideas were, indeed, not new ones, even in 1776; they had 
been clearly stated by the philosopher Locke in i6go and by Milton and 
others before him; but they did not become a practical program of 
political action until the former colonies, by successful revolution, 
won their admission into the family of nations. 



ON THE EVE OF THE WORLD WAR 15 

group or community of people may, under certain circum- 
stances, sever themselves from the larger State of which they 
constitute a part. This latter principle followed as a logical 
corollary of the former, and it offered a new theoretical justi- 
fication for the age-old struggle of nationalities for an inde- 
pendent statehood. The world had long been familiar with 
the claim of national groups to freedom from foreign aggres- 
sion, and the moral right of revolution in such cases had been 
freely asserted by philosophers and statesmen. The new dec- 
laration announced to rulers that self-government was so far 
the right of man that even colonies which were of the same 
blood and language as the mother country and whose legal 
traditions were the same might throw off the government of 
the mother country and set up a separate government of their 
own. The conditions justifying such action were clearly set 
forth. Whenever any form of government becomes destruc- 
tive of the ends for which it was instituted, " it is the right 
of the People to alter or to abolish it, and to institute new 
Government " for the better attainment of those ends. Natur- 
ally such a change of governments should not be made '* for 
light and transient causes," but as an alternative to continued 
misgovernment it became not only a right but a duty. 

Development of the democratic theory. The Declaration 
of Independence was a document of revolution. Taken apart 
from the immediate purpose which those who issued it had 
in mind, it set forth a theory of equality which was susceptible 
of the most radical interpretation, and conservative statesmen 
looked with suspicion upon what they feared might be the 
dawn of an age of anarchy. In some respects the Revolution 
was not so much a war between the colonies and the mother 
country as a struggle between classes of society. For many 
of the separate governments under which the colonists had 
been living were far from being based upon an equality of 
political privileges or an equality of economic opportunity. 
Not a few, therefore, of the leaders who gave the Declaration 
their support as a prograiii of political action against Great 



i6 POLITICAL SYSTEMS IN TRANSITION 

Britain did not consider themselves inconsistent in endeavor- 
ing to maintain a limited suffrage based upon property qualifi- 
cations and in seeking to keep the reins of government in the 
hands of the old aristocracy in control before the Revolution. 
Owners of slaves rejected -altogether the application of the 
theory to those whom they held at law to be not persons but 
property. The reaction against ultra-democratic theory be- 
came all the more marked when the conditions following the 
Revolution gave evidence of the excesses to which the new 
doctrines were leading in many quarters. But as decade suc- 
ceeded decade the idea of popular government strengthened 
its hold upon the country and the forces of conservatism 
were driven more and more into the background. The opening 
up of the public lands to settlement in the Middle West led 
naturally to the breakdown of the property restrictions placed 
upon suffrage in some of the older eastern States, and the 
triumph of Jacksonian democracy in 1828 soon disposed of the 
tradition that the exercise of political power was the preroga- 
tive of an exclusive group of the educated and propertied 
classes. The close of the Civil War showed the progress that 
had been made. The Gettysburg address reaffirmed the ideal 
of " government of the people, by the people, and for the peo- 
ple"; the 13th Amendment to the Constitution wiped out the 
anachronism of a subject race ; while the 14th Amendment se- 
cured the predominance of National citizenship over State 
citizenship, and placed the protection of the fundamental 
rights of life, liberty, and property under the control of the 
Federal Government. One outstanding issue still remained un- 
settled on the eve of the World War. Is the suffrage by 
which the law is made and policies are determined to be con- 
sidered as a right or as a privilege of citizenship? And if a 
privilege of citizenship, is the discrimination against sex, irre- 
spective of qualifications or of consent, compatible with the 
theory of equality which lies at the foundations of democracy? 
Moral character of the democratic state. The theory that 
governments are but the agents of tlie people and are instituted 



ON THE EVE OF THE WORLD WAR 17 

to secure certain rights not possessed by the people as a gift 
from the government, but held by them prior to its creation, 
has as its corollary the principle that the State, of which the 
government is but the outward expression, exists not for 
itself but for the benefit of the individuals who compose it. 
The sole aim and object of the State is to act as a means by 
which the citizen body may obtain for themselves collectively 
and individually certain definite advantages not otherwise 
within their reach. Hence the personality which the State pos- 
sesses cannot endow it with attributes which are contrary to 
the welfare of the individual units who compose the body 
politic. What rights, therefore, the State may claim, it claims 
m.erely as the trustee of the rights of the people as an organ- 
ized group, and at the same time it must assume the obliga- 
tions incumbent upon its members in the same capacity. In 
consequence it has always been part of the American theory 
of democracy that the same moral code which was accepted 
by the citizen body as individuals should be binding upon the 
State as a whole, so that, for example, a treaty made by the 
Government with a foreign State should be judged by the same 
standard and be regarded as of the same binding force as a 
contract of a similar nature between two citizens. Doubtless 
this belief in the identity of the moral standards applicable 
to the conduct of the State and of individuals has been rather 
a subconscious inference from the general theory of democratic 
government than a definitely formulated rule of conduct ; and 
no one would claim that the actual foreign policies of the 
nation have always conformed to that ideal. But within these 
limitations it still remains true that no justification for the 
evasion of its obligations would conceivably be offered by the 
American Government which denied the obligation of the State 
to be bound by the rules of individual moral conduct.^ 

^ The point is strikingly developed in an address of Senator Root 
before the Senate in favor of the repeal of the exemption of American 
coastwise vessels from payment of tolls for the use of the Panama 
Canal. The obligations of honor in a democracy are set forth as 



i8 POLITICAL SYSTEMS IN TRANSITION 

American political institutions. Turning from the discus- 
sion of American democracy in its aspects as a political ideal 
to the machinery of government which has been created in 
the attempt to realize that ideal, we find ourselves in the pres- 
entee of complex institutions which at first sight seem incon- 
sistent with the fundamental principles expressed in the Decla- 
ration of Independence. The simple faith in democracy which 
characterizes the great document of revolution is seen to be 
limited and restrained by the organization through which it was 
made a living reality. These limitations and restraints were 
primarily due, in so far as the United States as a whole is 
concerned, to the difficulty of creating a Federal State which 
should at the same time represent the " more perfect union " 
believed necess'ary in 1787, and yet not encroach more than 
was necessary upon the local self-governing powers of the 
several States. They were also due to the formal character 
of the written document in which the agreement of federation 
was drawn up ; and again they were due to the complex nature 
of the agencies provided for the Federal Government. It has 
long been held by many critics that these limitations and re- 
strictions have in part outworn their usefulness, and have 
ceased to be suited to the conditions and needs of a later gen- 
eration. This belief has acquired new strength as a result 
of the severe test through which the Federal Government was 
put during the war. The nature of this test we shall see in a 
subsequent chapter. We may here briefly examine the 
machinery to which the test was applied. 

The powers of the Federal Government. The division of 
power between the " Union " and the States was not made in 
accordance with an abstract theory of government, but in re- 
sponse to the imperative demands of the times. The States 
which had made but slight concessions of governing power to 
the central Congress under the earlier Articles of Confedera- 
tion found from stern experience that a fuller measure of 

overweighing the material losses involved. " Addresses on International 
Subjects," p. 207. 



ON THE EVE OF THE WORLD WAR 19 

power must be granted if the principle of unity was to prevail 
against the centrifugal forces of the thirteen States each re- 
taining " its sovereignty, freedom, and independence." The 
delegation of power by the separate States to the government 
of the Union was made reluctantly, not generously. The 
Federal Government was entrusted with power over matters 
in which unity of action was deemed essential, and among them 
the power to declare war and to raise and support armies ; while 
on the other hand the States retained the powers of local self- 
government and in general all other powers not expressly or 
impliedly delegated to the central Federal Government. 
Little more was conceded than the minimum regarded as neces- 
sary to overcome the defects of the existing confederation, al- 
though that minimum did, as the event proved, constitute the 
foundation of what was ultimately to become a single national 
State. For whatever was the original intention of the framers 
of the Constitution and of the State conventions which ratified 
it, time and the inevitable demands of territorial expansion led 
the government of the Union to assume an ever-widening 
power. Formal amendments had been provided for, but it was 
not foreseen that no document can be so rigid as to resist the 
informal amendments imposed by a growing nation. Nor was 
it foreseen that the delays incident to the amending process, 
while of value in normal times in securing the necessary de- 
liberation upon the questions at issue, might prove a serious 
obstacle to the protection of the nation in cases where prompt 
action was essential. The crisis of secession called for the 
assumption by the Federal Government of powers which the 
letter of the Constitution completely failed to justify; but the 
urgent needs of the situation silenced the dissenting voices, and 
the Federal Government vindicated its self-conferred author- 
ity. The years succeeding the Civil War were years of unpre- 
cedented industrial growth, and the boundaries of local state 
Government were crossed at every point by the highways of 
commercial and social intercourse. Gradually the Federal 
Government enlarged its control, though still keeping within 



20 POLITICAL SYSTEMS IN TRANSITION 

the letter of the Constitution. Then again, the outbreak of 
a war calling for the concentration of the resources of the 
entire nation became the occasion for the extension of the 
range of federal authority beyond bounds hitherto imagined. 
The nature of a written constitution. Restrictions upon 
the agents of government. Both in the case of the Federal 
Government and of the separate component States the origin 
and legal character of the agencies of government are to be 
found in a definite document adopted by the people as the 
foundation of their political organization. These written con- 
stitutions, being the first of their kind in modern history, have 
had an influence far beyond the borders of the country in which 
they originated. They represent the conscious attempt of 
democracy not only to provide for itself a specific form of 
government, but to place restrictions both upon its own agents 
of government and upon the normal majorities by which elec- 
tions are won and policies dictated. With respect to the 
agencies of government the function of a constitution is not 
only to give stability to the organization of-lhe government, by 
making it a matter of considerable delay before changes can 
be effected, but to keep the officers of the government, when 
exercising their functions, within the particular field assigned 
to them. The framers of our early constitutions were familiar 
with the human weakness which leads those who have power 
to seek to acquire more. They therefore believed that the con- 
trol over the agents of government by means of regular elec- 
tions was not sufficient, and they sought to restrain them by 
placing a definite limitation upon their activities. The idea is 
best expressed in the oft-quoted statement from the Massachu- 
setts Constitution of 1780, that the object to be attained was 
" a government of laws not of men." This means that no act 
of an officer of the government is valid unless it can be justified 
by a general or specific authority conferred upon such officer 
by the constitution. The decision in a given instance whether 
the legislative and executive agents of the government have 
exceeded the powers conferred upon them by the constitution 



ON THE EVE OF THE WORLD WAR 21 

is, in the United States, entrusted to the judicial department 
of the government. 

The principle of checks and balances. But the unique 
feature of the Federal Constitution which gives it perhaps its 
distinctive character among otlier constitutions is the provision 
which it makes for " checks and balances " in the organization 
of the government. This principle, while introduced by con- 
servative members of the Constitutional Convention of 1787 
as a means of offsetting the dangers of a turbulent and fickle 
democracy, was accepted by radicals as promising to prove an 
equal protection against autocratic control. In accordance 
with it, the Convention assigned the distinct functions of 
government, legislative, executive, and judicial, to separate de- 
partments, each acting to a greater or less degree independently 
of the other. By dividing the legislature into two houses of 
unequal terms of two and six years, by electing one-third of 
the members of the Senate every two years, by making the 
President independent of Congress and providing a term of 
office equal to two terms of the lower house, and by creating 
an appointive judiciary empowered to interpret the Constitu- 
tion and the laws made in pursuance of it, the Constitution 
makes it practically impossible to bring about any sudden change 
in the policies of the Government.^ The hasty and ill-consid- 
ered demands of even a majority of the electorate cannot at 
once be registered as laws if opposed by a determined minority. 
It is true that the separation of the powers of government is 
not complete : the President is given a veto over legislation as 
well as the right to recommend measures for adoption. Con- 
gress may not only make laws but may prescribe regulations 
for the administrative departments through which the Presi- 
dent enforces the laws, and the Senate can withhold its con- 
sent from appointments to office made by the President. But 

1 An excellent illustration of the effect of different terms of office 
for different bodies is to be seen in the continuance in office of Presi- 
dent Wilson after his policies had by implication (as far as can be 
judged from so doubtful a procedure as an election in which numer- 
ous issues were involved) been repudiated in the elections of 1918. 



22 POLITICAL SYSTEMS IN TRANSITION 

with these and other lesser exceptions, designed to emphasize 
the primary check obtained by separation, the departments per- 
form their appointed functions each independently of the 
other. 

Criticism of the principle. The principle of checks and 
balances as exemplified in the Constitution of the United States 
was an object of criticism long before the crisis of the war 
called it more seriously into question. Few, indeed, of those 
who still had faith in it would go so far as to say with Madison 
that " the accumulation of all powers, legislative, executive and 
judiciary, in the same hands, whether of one, a few, or of many, 
and whether hereditary, self-appointed, or elective, may justly 
be pronounced the very definition of tyranny." ^ It was gen- 
erally recognized that popular control over the government 
could be rendered sufficiently eflrective to prevent tyranny or 
oppression even where, as in the case of parliamentary govern- 
ment through a responsible body of ministers, the powers of 
government are unified under a single contr-ol. With democracy 
firmly seated in the saddle, as it was by the close of the nine- 
teenth century, why should a system be perpetuated which tended 
to prevent democracy from accomplishing its own will promptly 
instead of after self-imposed delays. With both President and 
Congress subject to the same popular control, why should they 
be forced to work more or less in isolation when efficiency 
clearly called for cooperation? Why should administrative 
departments perform their duties under rules prescribed by 
Congress, but be responsible to the President for the effective 
discharge of their duties. Why should Congress appropriate 
money and prescribe regulations for the departments with- 
out being obliged first to obtain a proper understanding of the 
needs of the departments? Obviously there was no advantage 
in continuing a system which divided responsibility and created 
duplications of functions and consequent friction and confu- 
sion. Here again the war opened the eyes of the public to an 
understanding of conditions which for want of an impressive 

1 " The Federalist," No. 47. 



ON THE EVE OF THE WORLD WAR 23 

lesson had been allowed to continue much too long. It was 
one thing to accept inefficiency as an inconvenient result of a 
system of government which had been in operation -so long that 
it was easier to continue with it at some additionalcost than to 
undertake the necessary changes; it was quite another thing 
to find that in the presence of the demands of a World War 
inefficiency was in a sense constitutionally imposed upon 
us. 

The protection of individual rights. Both the Federal 
Constitution and the separate state Constitutions contain 
guarantees that certain fundamental rights of the citizen body 
shall not be encroached upon by the Government. In respect 
to the legal effect of these guarantees it need only be observed 
that their purpose was to prevent arbitrary action by the officers 
of the Government, not to permit the unrestricted enjoyment 
of those rights contrary to the welfare of the people as a 
whole. The purpose of the guarantee of freedom of speech 
and of the press was not to make possible a license in the ex- 
pression of opinions which might be hurtful either to indi- 
viduals or to the public at large. The 5th and 14th amend- 
ments to the Federal Constitution, requiring of both the federal 
and the several state governments that " due process of law " 
shall be followed in any proceeding against the life, liberty, 
or property of an individual, are a standing check upon arbi- 
trary governmental action ; but in neither case do they prevent 
the passage of laws by which both liberty and property are 
subjected to restrictions for the common good. The guarantees 
are, therefore, not absolute but qualified, and the extent of 
their enjoyment must be determined in the individual case by 
balancing the presumptive right of the individual against the 
possible injury to others. In times of peace this issue is 
frequently raised in connection with the exercise by the State 
of its " police power " to protect the public welfare. In time 
of war the issue becomes one of denying individual rights 
where their exercise might endanger the safety of the State. 
Wliether in the recent war the restrictions imposed were in ex- 



24 POLITICAL SYSTEMS IN TRANSITION 

cess of the need is a question to be answered in a subsequent 
chapter.^ 

Similarity of war problems in Great Britain and in the 
United States. Many of the problems with which the U'nited 
States was confronted as the result of its entrance into thd 
war, both in respect to the organization of its government and 
in respect to the relation of the individual to the State, were 
closely paralleled by similar problems in Great Britain. To a 
large extent the traditions of free government in the United 
States are an inheritance from the former mother country. 
New shoots have been engrafted upon the original stock, new 
applications have been made of old principles, but the funda- 
mental conceptions of freedom and justice in both countries 
have remained largely the same. Due to external conditions 
of colonial settlement and of national expansion the United 
States has departed widely from the original model in respect 
to the organization of its government ; but even here there are 
points of mutual contact. In consequence, the experience of 
Great Britain in -adjusting its political principles and its govern- 
mental machinery to the demands of the war not only proved 
to be of immediate service in helping the United States to meet 
a similar emergency, but furnished many valuable opportun- 
ities of comparison in respect to the efficiency of the two differ- 
ent systems of government. The experience of Great Britain 
in making this adjustment belongs to a subsequent chapter, 
but the lessons for the United States will become more evident 
if a brief reference be made here to the principles underlying 
British democracy and to the foundations of its political struc- 
ture. 

Democracy in Great Britain. Representative govern- 
ment. The foundations of British democracy can be traced far 
back into its Anglo-Saxon past. The walls of the edifice were 
erected but slowly from the thirteenth century onwards, part 
being added upon part on successive occasions of political revolt. 
The nineteenth century saw the central building completed. 

1 See below, pp. 168-176. 



ON THE EVE OF THE WORLD WAR 25 

There are still important wings to be added before the structure 
can be said to be finished as a whole. The story is a long one 
and is marked by the parallel development of two different 
principles, the right of the individual citizen to a distinct sphere 
of personal liberty and the right of the individual citizen to 
take part in the business of government. The latter right has 
been, until recent years, of far less importance to the average 
Englishman than the former. Magna Charta was a document 
of liberty, but not a document of democracy. It contained 
guarantees against oppression of the people by the king, but it 
did not give them a share in the government. At the time of its 
adoption the important question was not the desire of the 
citizen body to control the destinies of the State, but the desire 
to be protected against arbitrary and despotic acts in the affairs 
of their daily lives. In the same century a national Parliament 
was established, one branch of which admitted the knights of 
the shires and the burghers of the towns to representation in 
an assembly of very limited powers. In the succeeding cen- 
turies the powers of Parliament grew in extent, but its com- 
position became more and more exclusive. Franchise qualifi- 
cations and the manipulation of seats by the Government nar- 
rowed the governing body to the properties classes. The Bill 
of Rights, which marks the final stage of the struggle against 
autocracy, was the demand of an aristocracy for its lost privi- 
leges, not of a democracy for its rights. At the time of the 
American Revolution Parliament was elected by so restricted 
a suffrage that it was in no sense representative of the great 
masses of the people. It was not until the act of 1832 that 
the suffrage was extended to the great middle classes, and 
not until the acts of 1867 and 1884 that the laboring classes 
in town and country were included. As things stood in 1914 the 
ideal of British democracy closely approximated to tlie Amer- 
ican ideal in recognizing the complete right of a majority of 
the electorate to control the Government through their repre- 
sentatives in Parliament. It remained for the war to hasten 
the passage of the Representation of the People Act of 1918, 



26 POLITICAL SYSTEMS IN TRANSITION 

which extended the suffrage to women and removed some of 
the outworn electoral privileges attached to the possession of 
property. 

The rights of citizens. But if the popular will as a positive 
force in controlling the Government was late in obtaining its 
present recognition, the right of the individual to a sphere of 
personal liberty as against the encroachment of the Government 
was successfully asserted frcJm the start. Magna Charta is best 
known to us by the clause which calls for the reinstatement 
of the old " law of the land " which had been taking shape 
' for several centuries. The right to trial by jury, the customary 
forms of procedure, equality before the law, the right to be 
secure in one's person and one's property against arbitrary 
restraints, — these were the aspects of free government which 
came to seem essential in the succeeding years, and which stiP 
to a large extent dominate the thought of British democracy. 
Freedom of speech and of the press is less explicitly laid down 
in the law of Great Britain than in that of the United States 
or of France, but with exceptions based upon protection against 
libel and against treason, it is none the less securely main- 
tained. It is, as it were, an implied right, which has needed 
no formal guarantee from the Government, yet which can be 
restrained by any jury when circumstances of libel or treason 
demand it. Such also is the right of assembly, which is no 
more than the right of citizens to do as a group what they may 
do individually. As Professor Dicey has pointed out, these 
traditional rights of British democracy are inferences from the 
general " rule of law " which is one of the dominant character- 
istics of the British Constitution. Parliament may be corrupt; 
the courts may decide unjustly in individual cases; but no one 
may question the principle of the supremacy of the law as 
against arbitrary acts, or the principle of the equal application 
of the law to all without discrimination. Our present interest 
in these traditional rights arises from the fact that the im- 
perative demands of a World War forced the Government to 
deny them in numerous instances, and Englishmen lookted on 



ON THE EVE OF THE WORLD WAR 27 

with mingled feelings of resentment and resignation at the sub- 
ordination of their domestic liberties to the safety of the nation. 
But what was more serious still, even the old " rule of law " 
was obliged to yield in part to the emergency, and we are now 
witnessing manifestations of isolated " lawlessness " which, 
though due to other causes than the war, is becoming a serious 
menace to the future welfare of British democracy. At the 
same time the question is being asked in Great Britain whether 
there can be true democracy under an economic system which 
has kept the land from the people, and, as in the United States, 
under an industrial system in which the workers have no con- 
trol over the conditions under which they must live. 

The British Constitution. If American political institu- 
tions are complex in their number and inter-relations, they are 
at least the product of a definite act of the popular will and are 
based upon provisions specifically laid down in written consti- 
tutions. By contrast, British political institutions, while simpler 
in their actual working mechanism, rest upon a far more in- 
tangible constitutional basis. No single written instrument em- 
bodies the fundamental law from which the agents of the Gov- 
ernment derive their powers. If a question arises as to the 
authority upon which a given act of the Government is based, 
it cannot be answered by reference to the text of an original 
grant of the people. There is, indeed, a constitution, but it is 
embodied in a wide variety of important documents drawn up 
at times of political crisis, in statutes of Parliament passed 
under circumstances which have given them a special author- 
ity and permanence, in other statutes of no special political 
importance, and in customs and traditions which have ob- 
tained recognition in the decisions of the courts. Magna 
Charta, the Petition of Right, the Bill of Rights, mark certain 
stages in the development of the British Constitution, but they 
are far from being an embodiment of it. From time to time 
Parliament has pronounced definitively upon certain pressing 
issues, such as the extension of the suffrage during the nine- 
teenth century, and its decision has acquired for the time being 



28 POLITICAL SYSTEMS IN TRANSITION 

the force of a constitutional enactment. Such statutes are 
valid in their own right, and there is no higher law by which 
their authority need be tested. But in addition to these tangi- 
ble evidences of fundamental law, there is the large body of 
customs and traditions which have been built up during the 
course of centuries and which represent the adaptation of the 
fundamental law to the needs of the times without the pro- 
cedure of a formal amendment. Those which relate to the 
rights of the individual in his relation to the State are to be 
found in a long line of judicial decisions which have the author- 
ity of written rules of law. No position of priority, however, 
is accorded them by reason of their long duration or funda- 
mental character, should acts of Parliament be passed super- 
seding them. Those which relate to the organization of the 
Government and its functions, such as the dependence of the 
Cabinet upon the House of Commons, exist in the form of 
conventional understandings which have practically the force 
of law, but which could be set aside by Parliament without rais- 
ing any issue of which the courts of the country could take 
jurisdiction. 

Elastic character of the British Constitution. It will be 
seen at once that the British Constitution is far more elastic 
than that of the United States. Changes in the British Con- 
stitution can be brought about by the same procedure which 
attends the passage of an ordinary law, and constitutional 
amendments are in fact indistinguishable from ordinary laws 
except in respect to their subject-matter. What does an 
Englishman mean, then, when he protests against a law as 
being an unconstitutional invasion of his private rights? He 
means either that the law in question encroaches upon a domain 
which by long custom has been regarded as outside the sphere 
of governmental interference, or that the law regulates those 
rights in a manner fundamentally different from that hitherto 
followed. But as Parliament is omnipotent, that is to say, as 
there is no jurisdiction on the part of the courts to declare 
an act of Parliament null and void, the injured party has no 



ON THE EVE OF THE WORLD WAR 29 

appeal other than to his representative in Parliament and to 
the public opinion of his fellow-citizens who are similarly af- 
fected by the law. Under such a constitution, and with the 
supreme power of the whole State centralized in one legislative 
body, it can readily be seen how easy it was for the British 
Government to adjust itself to the changes required by the 
war. The most drastic amendments to the fundamental law 
could be made without raising the issue of their legal validity. 
On the other hand the war raised the question whether there 
was sufficient protection for the personal and property rights 
of the citizen, when an act of Parliament could without more 
ado set aside the customs and traditions of centuries. 

Popular control of the Government. It is frequently said 
that the British Government is more democratic than the Gov- 
ernment of the United States in that it is more directly respon- 
sive to changes in the popular will. The Cabinet represents 
the majority in Parliament and is dependent upon that major- 
ity for its continuance in office. Should the majority in Parlia- 
ment become dissatisfied with the policies of the Cabinet, or 
should one or more of the groups which make up the majority 
withdraw its support, the Cabinet must resign in favor of a 
new group of leaders possessing the confidence of Parliament. 
Assuming that Parliament really represents the popular will, 
there is here a much more direct control over the policies of 
the Government than is possible in the case of a government 
whose officers are elected for fixed terms. Moreover, by a 
sort of reverse process, it is possible for the Cabinet to decide 
that a majority in Parliament does not actually represent the lat- 
est expression of the popular will, and it may in consequence 
dissolve Parliament and order a new election for the purpose 
of ascertaining that will more accurately. This form of na- 
tional referendum had come by the close of the nineteenth 
century to be regarded as the proper procedure when important 
measures were brought forward which were not in the minds of 
the electorate when the existing members of Parliament were 
elected. The value, of the practice may be seen by a compar- 



30 POLITICAL SYSTEMS IN TRANSITION 

ison with the situation which developed in the United States 
after the elections of 1916, when a President and Congress, 
elected in part because they would keep the country out of 
war, felt obliged to declare war; and again after the elections 
of 1918, when an administration which had lost its support 
in Congress continued to direct the foreign policies of the 
country. On the other hand it was a common enough criticism 
in the British Liberal press before the war that cabinet govern- 
ment was not in all respects democratic. There was a notable 
absence of discussion in Parliament, with the result that while 
the responsibility of the Cabinet to the people was sufficiently 
direct in respect to the important issues which figured in the 
headlines of the daily press, the Cabinet was practically an irre- 
sponsible body in respect to the less important, or rather the 
less conspicuous, measures, and in respect to the detailed ad- 
ministration of the law. The governing class, it was said, was 
strongly entrenched in the Cabinet, and the steady gain in the 
power of the Cabinet at the expense of Parliament had re- 
duced the British Government at times to the status of an 
oligarchy rather than of a democracy. These grounds of criti- 
cism were greatly increased as the result of the new functions 
assumed by the Cabinet during the war.* 

Ideal of French democracy. Unlike its steady growth 
in Great Britain, the development of democracy in France 
has proceeded as a series of cross-currents, checking one an- 
other by their contact at sharp angles, but in the resultant of 
their forces moving steadily forward. Popular sovereignty 
as a theory was promulgated in France by Rousseau even be- 
fore Jefferson, himself under the influence of Rousseau, drew 
up the American Declaration of Independence. With the out- 
break of the French Revolution came the literal adoption of 
the theory, with the most radical practical applications as the 
Revolution progressed. Reactions followed, but through all 
the period of conservative constitutionalism the ideals of 
" liberty, equality, and fraternity " remained a force in the 

1 See below, pp. 81-86. 



ON THE EVE OF THE WORLD WAR 31 

background, ready to exert itself in emergencies. Each minor 
revolution, with its installation of a new dynasty or a new re- 
public, served to define anew the rights of the people. The 
triumph of democracy seemed assured in 1848, but again there 
was a set-back and for two decades democracy was defeated 
by an appeal to a flattering imperialism. Defeat in war re- 
vived the demand for republican institutions, and after four 
years of wavering decision the Republic was finally established 
in 1875, ^^^ responsible government on a basis of manhood 
suffrage marked the final stage in the changing fortunes of 
French democracy. The supremacy of " the general will " as 
the legal basis of the State, accompanied by the recognition of 
definite moral limitations upon that will in the interest of 
maintaining justice and order in society, may be taken as the 
sum of French political idealism. It must be observed, how- 
ever, that unlike the express provisions of the United States 
Constitution, there are no constitutional limitations upon the 
will of the people as expressed through their representatives. 
The power of the Chambers is as absolute as that of the Bour- 
bon dynasty before 1789. 

Character of the French Constitution. Constitutional 
government in France, while based upon much the same ideal 
of democracy which prevails in the United States and Great 
Britain, presents variations in the organization of its agencies 
of government which offer many instructive points of com- 
parison. We have seen that French democracy has not felt it 
necessary to place legal restraints upon its own freedom of 
action. The Revolution did, indeed, issue a Declaration of the 
Rights of Man and of the Citizen closely paralleling the Amer- 
ican Declaration of Independence, but with the overthrow of 
the royal power it was not felt necessary then or later to 
include that statement in the Constitution of the State as a 
guarantee to the citizen body against its own agents of govern- 
ment. Popular control over those agents was regarded as of 
itself a sufficient guarantee of individual rights. Moreover, 
the present Constitution, consisting of " organic laws " enacted 



32 POLITICAL SYSTEMS IN TRANSITION 

in 1875, with subsequent amendments, is the product not of a 
constitutional convention elected for that purpose, but of an 
Assembly elected to conclude peace with Germany, which took 
upon itself the task of a constitutional convention because of 
the emergency in which the country was placed. The Consti- 
tution which this Assembly drafted was never submitted to 
the people for formal ratification. Amendments to it may be 
made without other formality than a joint session of the two 
legislative bodies. The Constitution of France is, therefore, 
not based upon a formal creative act of the people, but upon 
the ratification implied in the subsequent acquiescence of the 
people in the acts of the various National Assemblies which 
have taken part in its adoption. 

Checks and balances in the French Government. But 
while there are no constitutional safeguards in France in re- 
spect to the powers of the Government, there are checks and 
balances which tend to offset radical or ill-considered legislation. 
These checks and balances consist in the partial separation of 
the powers of the Government and in the indirect methods of 
electing the President and the Senate. The President is elected 
not by popular vote but by the two houses of the legislature 
sitting in joint session. His executive powers are, however, 
very limited, since he is by law obliged to appoint as his Council 
of Ministers men who have the support of the Chamber of 
Deputies. The result is that the President is actually dom- 
inated by his Council, which under the name of the Cabinet 
is the controlling body of the Government. The composition 
of the Senate is, however, an actual as well as a legal check 
upon the Chamber. Its members hold office for nir^e years, 
and they are elected indirectly by electoral colleges within each 
of the departments into which the country is divided. But 
since the Council of Ministers is dependent solely upon a 
majority in the Chamber of Deputies, the control of the Senate 
is limited to its veto upon legislation and does not extend to the 
administration of the law. In this latter field some measure of 
restraint upon the government is to be found in the special 



ON THE EVE OF THE WORLD WAR 33 

administrative courts created to deal with the powers and liabili- 
ties of public officials.^ 

Instability of French cabinets. Not only is there no con- 
stitutional control by a majority of the people over the gov- 
ernment they have elected, or by a minority of the people over 
the small majority which may carry a given election, but no 
direct relations have been established between the Cabinet and 
the people as has been the case of recent years in Great Britain. 
The practice of calling a general election to obtain an expres- 
sion of the will of the people upon important pending con- 
stitutional questions is blocked by the fact that the lower house 
cannot be dissolved by the President at the demand of the 
Cabinet, but the Senate also must give its approval. In con- 
sequence, a Cabinet which feels that it has the country behind 
it may not of its own motion appeal to the country over the 
heads of the members of the Chamber. Moreover, the large 
number of political parties in France, and the fact that no one 
of them commands a majority in the Chamber, makes it neces- 
sary to constitute coahtion ministries roughly representing the 
various groups. Owing, however, to the lack of any definite 
principles or policies to which these groups are committed, it 
is impossible for the Cabinet to feel sure that the majority be- 
hind it at any given time can be counted upon to support its 
measures. Cabinets rise and fall, therefore, in rapid succes- 
sion, and yet it is difficult for the average citizen to know 
whether the apparent cause of their fall was the real one, and 
how far his own principles have gained or lost by the change. 
The instability of ministries would, indeed, seriously interfere 
with the conduct of pubHc business, were it not for the fact 

1 F. J. Goodnow, in his " Principles of Constitutional Government," 
p. 237, is of the opinion that these courts have elaborated a legal sys- 
tem " which is surpassed bj' none in its success both in protecting in- 
dividual rights and in promoting government efficiency." Other writers 
regard them as making the executive independent of the judiciary, so 
that there is " one law for the citizen and another for the public offi- 
cial." Lowell, "Governments and Parties in Continental Europe," 
I. p. S8. 



34 POLITICAL SYSTEMS IN TRANSITION 

that many of the ministers who give up office when the Cabinet 
resigns are promptly reappointed in the succeeding Cabinet to 
the same or other posts. 

Centralization of the French administrative system. A 
final point in the French Constitution which oflfers particularly 
instructive contrasts with the federal character of the Ameri- 
can Government is the centralization of the French administra- 
tive system. Of recent years many complaints have been 
heard that while France is in other respects a democracy her 
administrative system has remained unchanged since the days 
of Napoleon, and that it is in organization as well as in fact a 
bureaucracy. With the exception of the minimum of self-gov- 
ernment possessed by the local communes laws are made at 
Paris for the whole of France, and are executed by the Minister 
of the Interior through the agency of a prefect appointed by 
the government in each of the departments. These prefects, 
over whom the people of the departments have no direct control, 
have a wide range of authority extending from the supervision 
of the execution of the national laws to the control of much 
of the local legislation of the communes. Two distinct issues 
appear to be involved in the attack upon this centralized system : 
in the first place it puts into the hands of the government so 
large an amount of political patronage that it is possible for 
the party in power (or the combination of parties) to entrench 
itself so strongly that it cannot be dislodged except by an over- 
whelming majority. In the second place it entirely eliminates 
self-government in the local divisions of the state, except in the 
communes, and even in the communes it reduces self-govern- 
ment to the status of a ward under guardianship. Decentrali- 
zation is the remedy urged to meet the second of these problems, 
and the question is once more raised in France whether there 
can be liberty in a state unless there is local self-government and 
a strong sense of local as well as of national patriotism.^ 

^A discussion of the subject may be found in a recent article by J. 
W. Garner. " Administrative Reform in France," in the " American 
Political Science Review," February, 1919, p. 17. 



ON THE EVE OF THE WORLD WAR 35 

The Prussian theory of government. In contrast to the 
American, British, and French ideal of democracy, the Prus- 
sian theory of government leads us into new fields. Here 
again the ideal must be judged both from the facts of political 
history and from the teachings of statesmen and of scholars. 
In the first place the constitutions both of Prussia and of 
Germany prior to the outbreak of the war represented in their 
origin not the imperative assertion by the people of a right of 
self-government, but the more or less voluntary concession by 
an absolute monarch of a limited measure of democracy. The 
unsuccessful revolution of 1848 in Berlin doubtless made it 
seem not inexpedient on the part of William I to promulgate 
the Prussian Constitution of 1850, but nowhere in Prussian 
law was the theory recognized of popular self-government as 
an absolute and indefeasible right. The constitution of the 
German Empire, adopted in 187 1, was, like our own, the con- 
stitution of a federal state, but there was no suggestion of 
popular sovereignty in its provisions similar to the provision 
" we the people ... do ordain," contained in the preamble to 
the Constitution of the United States. " The people " in Prus- 
sia were from one point of view a class distinct from the 
governing authorities. 

At the same time the theories of government promulgated 
in scientific publications and taught in the universities were 
entirely in accord with the legal position assigned by the con- 
stitution to the great body of the people. The state was not a 
mere group of people who had organized themselves for the 
furtherance of their common welfare. It had a personality of 
its own distinct from the collective personality of its citizens ; 
and in consequence it might pursue ends quite apart from the 
wishes of its citizens as individuals. It was doubtless from the 
highest motives of patriotism that Fichte enforced, in 1807- 
1808 at the University of Berlin, the idea of civic duty and self- 
sacrifice to the interests of the state ; but in so doing he sub- 
ordinated the individual to the state to the extent of making 
the rights of the individual wholly dependent upon the state. 



36| POLITICAL SYSTEMS IN TRANSITION 

Hegel, lecturing a decade later at the same university, went 
still further in his deification of the state, in whose welfare 
the interest of the citizen found its highest expression. The 
state did not exist for the welfare of the citizens who composed 
it, but for the ethical idea embodied in it ; so that if the need 
should arise individuals and their personal interests ought to be 
sacrificed for the advancement of the state. The doctrines 
of Hegel became the stock in trade of German university pro- 
fessors and received little or no check in consequence of the 
small measure of self-government allotted to the people by the 
constitutions of 1850 and 1871. As developed in the teachings 
of more recent writers and applied to the domestic and for- 
eign problems of the German Empire they have been a familiar 
object of attack during recent years. Their interest in connec- 
tion with the ideal of democracy lies in the fact that it is a 
simple step to infer from the enthronement of the state as an 
entity superior to the sum of its members the conclusion that 
the state is not bound by the moral standards of its individual 
citizens. " It is a further consequence," says the historian 
Treitschke, "of the essential sovereignty of the state that it 
can acknowledge no arbiter above it, and must ultimately sub- 
mit its legal obligations (towards others) to its own verdict.^ 
The German Constitution in 1914. So much has been writ- 
ten since the beginning of the war on the subject of the Ger- 
man Government that it is only necessary here to call attention 
to certain outstanding features of the German Constitution as 
it stood in 1914 which explain how it was that a constitution 
which presented so many of the familiar features of a demo- 
cratic frame of government could in reality be the instrument 
of absolutism. This is all the more important because in its 
outward appearance the German Constitution of 19 14 bore a 
marked likeness to that of the United States in respect to the 
organization and powers of the government. There is, indeed, 

^ A full and logical discussion of the whole subject may be found in 
the recent volume by W. W. Willoughby, " Prussian Political Philoso- 
phy." 



ON THE EVE OF THE WORLD WAR 37 

a striking difference between the two documents in that the 
Constitution of Germany made no provision for the protection 
of the rights of the individual against the state, which, as we 
have seen, is a characteristic feature of the Constitution of the 
United States. The act of the Imperial German legislative body 
was the supreme law, and there was no appeal which the citizen 
might take to any higher law protecting his fundamental rights. 
It is true that the Constitution of Germany enumerated a body 
of rights belonging to the citizens of the empire which might 
not be encroached upon by the several states, but these rights 
afforded no protection against the Federal Government itself 
nor against the separate state governments in respect to their 
own citizens. " Constitutionally, then," says Professor 
Burgess, " the immunities of the individual as against the 
poivers of the imperial legislature and executive taken together 
are nothing ; as against the acts of the legislature and executive 
they are what these bodies resolve to allow them to be." ^ 
Moreover, the Constitution of Germany embodied none of those 
conventions founded on custom and tradition which constitute 
a practical if not legal guarantee of individual liberties in Great 
Britain even against an omnipotent Parliament. 

Powers of the Kaiser. The position of the Kaiser as Ger- 
man Emperor by reason of hereditary succession to the throne 
of Prussia was in sharp contrast to the American plan of an 
executive elected for a fixed term, but the actual powers at- 
tached to the two offices were not greatly dissimilar. In Ger- 
many as in the United States the power to negotiate treaties 
was in the hands of the chief executive, but in the case of the 
Kaiser the consent of the Bundesrat was not necessary unless 
the treaty conflicted with some provision of constitutional or 
statutory law ; whereas in the case of the President every 
treaty must be submitted to the Senate for ratification. More- 
over, the President of the United States has no power to de- 
clare war, although, as we shall see, he can take steps which 
may make war practically inevitable ; whereas the Kaiser 

1 " Political Science and Constitutional Law." I, 180. 



38 POLITICAL SYSTEMS IN TRANSITION 

might on his own initiative declare war in cases where the 
federal territory was attacked, of which he was the sole judge. 
At the same time the Kaiser could manipulate the forces at 
work in a diplomatic crisis so as to create, as in 1914, a situa- 
tion in which the federal territory might be said to be at- 
tacked when in reality the reverse was the case. Unlike the 
President of the United States the Kaiser had no veto power 
over legislation, but on the other hand he had the power not 
only to convoke but to adjourn and under restrictions to dis- 
solve the legislature. The power to adjourn was several times 
used during the war to prevent the Reichstag, the popular re- 
presentative body of the Empire, from interfering with the con- 
duct of military and diplomatic affairs. The absence of minis- 
terial responsibility made it impossible for the Reichstag to 
question the conduct of public affairs in an imperative manner. 
Influence of Prussia in the Bundesrat. As the Senate 
of the United States represents the component states 
of the union, the Bundesrat represented the states con- 
stituting the German Empire. The composition of the two 
bodies differed, however, in that the representation of the Ger- 
man states in the Bundesrat was not on the basis of equality, 
as in. the case of the Senate, and in that the members of the 
Bundesrat were appointed by the governments of the several 
states, not elected by the state legislatures, or by direct popular 
vote as in the case of the United States Senators since 1913. 
The delegations of the several states voted as a unit, which 
made it an easy matter for their respective governments to con- 
trol their votes. Moreover, the powers of the Bundesrat in 
respect to legislation were considerably greater than those 
of the American Senate ; for bills were first presented to the 
Bundesrat by the Chancellor as the representative of the Em- 
peror and, if adopted, were then sent to the Reichstag. It is in 
the composition and powers of the Bundesrat that the chief un- 
democratic features of the German government were to be 
found, though these were due to extrinsic rather than to in- 
herent defects. Prussia as the largest German state had 17 



ON THE EVE OF THE WORLD WAR 39 

votes in the Bundesrat and controlled three other votes abso- 
lutely and three more conditionally. It controlled all the chair- 
manships of the Bundesrat except that of the committee on 
foreign affairs. Prussia was thus able practically to dominate 
the legislative activities of the Bundesrat, and in consequence 
the personnel of the Prussian delegation was of prime import- 
ance in judging of the character of the Bundesrat. It was 
this fact which caused so much criticism to be directed against 
the undemocratic features of the Government of Prussia as a 
separate state, which, with its hereditary and appointive upper 
house and its drastic property restrictions upon the suffrage for 
the lower house, constituted the guiding hand of the Empire. 
By a provision of the constitution which made 14 negative votes 
in the Bundesrat sufficient to veto a proposed constitutional 
amendment, Prussia was given the power to block any constitu- 
tional reforms not acceptable to it. 

Democratic character of the Reichstag. On the face of 
things the Reichstag bore a close resemblance to the House 
of Representatives of the United States. It represented the 
German people as a whole and thus cut across, or rather ob- 
literated, the boundary lines between the several states. But 
for the fact that there had been no redistribution of seats 
since 1871, and that the industrial and more democratic centers 
were thus discriminated against, the Reichstag was elected by 
a thoroughly democratic suffrage. Its powers extended to all 
subjects within the competence of the Empire, that is to say, 
to all subjects enumerated in the constitution as being an object 
of imperial legislation ; by the constitution it possessed the 
right to initiate legislation, but this right had in practice given 
way to the right of the Bundesrat to prepare measures to be 
submitted to the Reichstag, so that the latter body in reality 
did little more than give its consent to measures already passed 
upon by the Bundesrat. Moreover, the power of the purse, 
which has been in other countries the chief means by which 
the popular house of the legislature has enforced its will upon 
the non-elective branches of the government, was in the case 



40 POLITICAL SYSTEMS IN TRANSITION 

of the Reichstag seriously restricted by the fact that by cus- 
tom the army appropriation bills were voted for a period of 
five years, while other laws, and among them provisions for 
taxation, once enacted, continued to remain in force until re- 
pealed by the same procedure which enacted them, in spite 
of the fact that the special appropriations desired for them 
were withheld. Furthermore, German students of constitu- 
tional law asserted as a principle that the Reichstag had no right 
to refuse to pass the budget in order to coerce the executive 
department into acceding to its wishes. Lastly, it may be noted 
that by an express provision of the constitution the army was 
placed directly under the control of the Emperor and was bound 
by oath to render unconditional obedience to him. While the 
several states furnished their respective contingents, the army 
as a whole was organized and drilled under the law of the 
Empire. 

The Constitution of Russia in 1914. Rights of citizens. 
The constitution of Imperial Russia, like that of Germany, 
came into being in the form of a grant from the sovereign to 
the people. Not being framed by a constituent assembly, it 
represented the minimum of self-government which the czar 
and his advisers believed it necessary to concede to popular de- 
mand, rather than an instrument of government drawn up by 
the people to give effect to a definite theory of political organi- 
zation. As late as the revolution of 1905 the Russian citizen 
enjoyed neither the protection of a habeas corpus act, nor the 
right of free assembly, nor the right to present individual or 
collective petitions. Freedom of the press was severely re- 
stricted, as was freedom of communication by letter or printed 
pamphlet. The Fundamental Laws of May 6, 1906, con- 
tained an imitation " bill of rights " framed along fines of the 
traditional guarantees of the British and American constitu- 
tions; but the provisions of the law were qualified at almost 
every turn by the right of the government to make exceptions 
by general law. While there was a theoretical equality before 
the law in respect to fundamental rights, there was at the same 



ON THE EVE OF THE WORLD WAR 41 

time a legal distinction of classes and a discrimination in respect 
to the value of suffrage in favor of the lesser landed proprietors 
as against the peasantry and in favor of the larger proprietors 
as against the lesser.^ In consequence the abstract protection 
afforded to the fundamental rights of citizenship was rendered 
practically valueless in view of the actual inequality of social 
status and industrial opportunity, and in view of the impos- 
sibility of remedying these conditions by the processes of law. 

Organization of the government. ■ The organization of the 
government was so constituted as to deny to the one body re- 
presentative of the people any control over the administration 
of the law or the direction of foreign affairs. According to 
the Fundamental Laws of 1906 the Czar, as Emperor of all 
the Russias, wielded the " supreme autocratic power." He had 
" supreme control of all relations of the Russian Empire with 
foreign powers," and he determined " the course of the inter- 
national policy of the Russian Empire." The emperor had the 
right to declare war and to conclude peace and to enter into 
treaties with foreign countries. He was, moreover, in supreme 
command of the army and navy, and could order their mobili- 
zation and direct their operations. These powers were not 
nominal, as in the case of a constitutional monarchy like Great 
Britain, but were powers autocratically exercised and subject to 
no conventional limitations. Assisting the emperor in the ad- 
ministration of the empire was a Council of Ministers, ap- 
pointed by him and acting as heads of the principal depart- 
ments. The legislative body consisted of an upper and a lower 
house. The former, known as the Imperial Council, was in 
part appointed by the emperor and in part elected by various 
groups within the citizen body. Its composition was ultra- 
conservative in character, and while it did not as a rule initiate 
legislation its consent, like that of the emperor, was necessary 
to the adoption of measures. By a process of elimination, 

^ Details of the suffrage provisions, which compare with the three- 
class system in force in Prussia, have been reserved until the discussion 
of the new revolutionary government. See below, p. 67. 



42 POLITICAL SYSTEMS IN TRANSITION 

therefore, it can be seen that the lower house, or Duma, while 
representative of the people within the limits of the restricted 
suffrage system, was exceedingly limited in its powers. There 
was no ministerial responsibility to enable it to control the 
administration of the laws or the foreign policies of the gov- 
ernment ; and its control over the budget, which in other coun- 
tries has been the lever of democratic progress, was limited by 
the rule that certain customary expenditures, amounting to 47 
per cent, of the whole budget, were " protected " by the consti- 
tution. The army and navy were formally outside the range 
of its powers. When mobilization was about to be ordered by 
the government on July 30, 1914, the Duma was as powerless 
to impose a restraint as was the German Reichstag in the case 
of the Kaiser. Neither parliament gave its assent to the war 
until the die had been cast and protests would have been of no 
avail. 



PART II 

CHANGES BROUGHT ABOUT BY THE WAR IN THE 
POLITICAL INSTITUTIONS OF EUROPEAN COUN- 
TRIES. COMPARISONS AND CONTRASTS 



CHAPTER III 

COUNTRIES WITH AUTOCRATIC GOVERNMENTS 

War a contest between whole peoples. It will doubtless 
be conceded even by those who have greatest faith in democracy 
as an ideal of government that autocratic governments possess 
an initial advantage when faced with the problem of a great 
war. For the conflicts of nations are no longer contests merely 
between the armed forces of the belligerents in the field. War 
is now fought between the entire citizen body of one nation and 
that of the enemy, and the old distinction between combatants 
and non-combatants has been, except in minor respects, entirely 
wiped out. The army that fights must now be supported by a 
far larger civilian force at home, engaged in a wide variety of 
tasks which are in the truest sense " the sinews of war." The 
general staff which plans the details of the campaign must take 
counsel with the board of business advisers who know how to 
reach the sources of supply for army and navy and can best 
direct their distribution ; the laborer in factory and shipyard 
is brother in arms to the soldier in the field ; the farmer must 
contribute the extra bushel of wheat without which the food 
suppHes of the country would be inadequate ; women must take 
the places in war industries left vacant by the call of the men to 
arms ; and the public at large, old and young, must alter their 
ways of life in so far as is necessary to economize this or that 
vital element in the nation's fighting strength. A war of dead- 
locked battle lines becomes necessarily a war of exhaustion, and 
makes it imperative that the resources of the nation be drawn 
upon to the point of their utmost contribution. 

Organization essential to success. Now where the energies 
of an entire nation are brought to bear upon a single object, 
organization becomes an essential factor of success. Coordina- 

45 



46 POLITICAL SYSTEMS IN TRANSITION 

tion and subordination of the diverse economic forces is as im- 
portant as the existence of the forces themselves. Govern- 
ment now takes on a new character. Hitherto it has been oc- 
cupied primarily with the task of maintaining law and order in 
the community, leaving for the most part to the free play of 
individual activity the satisfaction of the economic needs of 
the people. It now finds that it must assume control of prac- 
tically the entire life of the community. Production must 
be regulated to meet the demands of war ; industries engaged 
in the manufacture of unessential articles must either be dis- 
continued or turned to the production of essential articles ; raw 
materials must be withheld from one factory and given to an- 
other on the basis of their contribution to the needs of the 
war. Distribution must no longer be a matter of satisfying 
individual wants but of meeting national demands. Prices are 
no longer to be regulated by the shifting law of supply and 
demand, but by an arbitrary standard of cost of production. 
There are thus cast upon the Government a wide variety of 
tasks to which its organization in time of peace is more or less 
inadequate. New administrative departments must be created 
and new authority conferred upon their officials. At the same 
time complete unity of command becomes as essential to the 
nation as to its fighting army, and the protection of individual 
rights ceases for the time to be the object of government in 
favor of the protection of the community as a whole against 
external aggression. 

Initial advantage possessed by autocracy. It is clear that 
a government organized along lines which concentrate authority 
in the hands of a single ruler or of a small number of men, 
and which remove that authority from the immediate control of 
a popular assembly, can accomplish the task of transforming a 
nation engaged in the activities of peace into a nation devoting 
the last QuncE of its strength to war far more easily than can 
a democratic government. Thus far in the world's history it 
has not beoD found possible to organize great armies upon any 
other baas than tkat oi the most rigid autocratic authority ; so 



AUTOCRATIC GOVERNMENTS 47 

that the call of a nation to arms is a call upon it to submit it- 
self in a greater or less degree to the military discipline of an 
armed camp. The discussions of parliaments and the checks 
and balances of a democratic government do but delay and 
impede the working of the great national machine, which can- 
not successfully function unless its individual parts are obedient 
to a single guiding hand/ It is not merely a question of the 
organization of an autocratic government being better prepared 
to assume the task of directing all the forces of the nation to 
a common object. There is also the important consideration 
that the citizens of the state have become accustomed to the 
voice of command and submit the more readily to the demands 
made upon them. While popular governments are justifying 
to their constituents the encroachments made upon their liber- 
ties, the autocratic government is receiving the prompt obedi- 
ence of a disciplined people. Both Germany and Russia prof- 
ited from this unquestioning response of their citizen body ; 
but Germany's advantage lay both in the fact that her people 
rendered a more intelligent and better-trained sei-vice, and in 
the fact that the supreme control of the state also extended 
over a highly organized industrial system. 

The menace of autocracy. We have seen above that the 
absence of ministerial responsibility in Germany left the Kaiser 
in complete control of the diplomatic relations of the Empire 

^ Sir Henry Maine has expressed in telling form the inconsistency 
of great armies and popular government. " No two organizations," 
he says, " can be more opposed to one another than an army scien- 
tifically disciplined and equipped, and a nation democratically gov- 
erned. The great military virtue is obedience; the great military sin 
is slackness in obeying. It is forbidden to decline to carry out orders, 
even with the clearest conviction of their inexpediency. But the chief 
democratic right is the right to censure superiors ; public opinion, 
which means censure as well as praise, is the motive force of demo- 
cratic societies. The maxims of the two systems flatly contradict one 
another, and the man who would loyally obey both finds his moral 
constituticm cut into two halves." "Popular Government," p. 2z; 
quoted by PoKticus, " Many-Headed Deaiocracies and War," " Fort- 
nightly Review," May, 191B. 



48 POLITICAL SYSTEMS IN TRANSITION 

with other nations. Negotiations might be entered into in 
secret and plans adopted, such as those agreed upon at the con- 
ference at Potsdam in July, 1914, without the popular house 
of the legislature being informed of their existence. War 
threatens in consequence of the Austrian ultimatum to Serbia, 
and still the Reichstag is officially unaware of the danger of the 
situation. Mobilization is ordered and war actually declared 
and begun before the Reichstag is summoned in session. On 
August 4 the representatives of the people are told that Ger- 
many is being attacked and are asked to vote the necessary 
credits. Considering all the factors of the situation it is now 
too late to back out, and even those who would not have voted 
to begin the war are practically coerced to support it. Such 
are the conditions which throw light upon the meaning of 
President Wilson's phrase that " the world must be made safe 
for democracy." " Self-governing nations," as the President 
says elsewhere in the same address, " do not fill their neighbor 
states with spies or set the course of intrigue to bring about 
some critical posture of affairs which will give them an oppor- 
tunity to strike and make conquest. Such designs can be suc- 
cessfully worked out only under cover and where no one has 
the right to ask questions." Autocratic nations must, therefore, 
be deprived of their power to prepare in secret and strike with 
suddenness the blow which democratic nations are by their 
very nature at a disadvantage in parrying. 

German state socialism an advantage in time of war. A 
further initial advantage possessed by Germany when con- 
fronted by the demands of a great war is to be found in the 
extent to which state socialism had been adopted in the years 
preceding the war. Unlike orthodox socialism, which advo- 
cates government ownership of the instruments of production 
and distribution in a state controlled by the workers, " state 
socialism," as the term is now generally used, consists in a 
combination of government ownership of certain industries and 
government regulation of others, while the government itself 
continues to be controlled by the forces of capitalism. It 



AUTOCRATIC GOVERNMENTS 49 

therefore fulfills but one of the conditions called for by ortho- 
dox socialism, and is so far short of the ideal as to be frankly 
rejected by many Socialists as worse than the system of private 
ownership. It cannot be denied, however, that the control by 
the German Government of the raw materials of industry, of 
transportation, and of credit, contributed to bring about a con- 
dition of economic freedom, in the sense that there was greater 
equality of opportunity for the smaller producers than wou4d 
have been possible had great trust companies similar to those 
of Great Britain and the United States been allowed to control 
the market. At the same time the German Government adopted 
a series of measures looking towards a more equitable distri- 
bution of the profits of industry ; laws were passed providing 
for sickness, accident, and unemployment insurance, old age 
and maternity pensions, and labor exchanges, with the result 
that a relatively high standard of living prevailed among the 
working classes of the German states.^ It is interesting in this 
connection to note that the reaction of the German press to 
the " nine principles of labor conditions " contained in the 
treaty of peace with Germany, which set forth the standard of 
industrial welfare which the nations represented at the Con- 
ference desired to attain, was to the eflfect that Germany had 
already reached the stage which the League proposed as its 
goal. 

Effect of paternalistic government. That good measures, 
whether relating to the regulation of business or to the improve- 
ment of the conditions of the working classes, may be put into 
operation by a government from other motives than the ab- 
stract welfare of the people is no argument against the mea- 
sures themselves ; but it is important to note that the effect of 
those measures in Germany was to lessen the desire of the 
people for political freedom and to create in the masses a 
sense of confidence in their government which its true charac- 
ter did not justify. Bismarck saw clearly that the progress of 

1 The subject is comprehensively treated in a volume by F. C. Howe, 
" Socialized Germany." 



50 POLITICAL SYSTEMS IN TRANSITION 

social democracy could not be checked unless the legitimate 
causes of social democracy were removed, and he proceeded to 
urge the enactment of laws which made Germany the foremost 
paternalistic state of the world. The business men of the com- 
munity readily acquiesced, because German industry did not 
make great strides until after the formation of the empire, and 
they had never been accustomed to the freedom of a laissez 
faire policy. The masses acquiesced because they found in 
the system a tolerable measure of good-living to which all 
theories of self-government will ever be a secondary considera- 
tion. The result of this subordination of political freedom to 
economic prosperity was, however, that the German Govern- 
ment, without consulting public opinion or giving the represen- 
tatives of the people an opportunity to state their views in ad- 
vance of the irrevocable declaration of war, could count upon 
the support of a docile and well-disciplined citizen body un- 
accustomed on the one hand to question its decisions and ac- 
customed on the other to accept the interference of the Govern- 
ment in its private afifairs. 

Control of industrial life. At the same time the Govern- 
ment had at its disposal much of the clerical machinery neces- 
sary to the task of assuming control of all the forces of the na- 
tional life. The control of the railway system was already in 
the hands of the Government, which had not only built strategic 
lines for military purposes, but had by tlie elimination of compe- 
tition and the introduction of a unified administration prepared 
the way for the immediate adaptation of the system to the 
uses of war. In like manner the mineral resources of the 
empire were in large part under the control of the Govern- 
ment. Prussia was in its own name one of the largest pro- 
ducers of coal, so that it was not difficult for the German 
Government to direct the distribution of that important com- 
modity among the various war industries. The production of 
iron ore, lead, zinc, copper and other raw materials of war 
industries was likewise largely under governmental regulation. 
It is true that even the most democratic state might undertake 



AUTOCRATIC GOVERNMENTS 51 

to bring all these important materials under its direct control ; 
our interest here is merely in observing that where an autocratic 
government, which has in its hands the power to make war on 
its own initiative, possesses such control, it has a distinct ad- 
vantage in the rapidity and ease with which it can adjust it- 
self to the conditions of war. 

Advantages of an irresponsible government. During the 
early years of the war the German Government maintained in 
many respects this initial advantage. An irresponsible gov- 
ernment, not subject to be called to an accounting by the 
Reichstag, was left free not only to carry out its military poli- 
cies without obstruction, for these have in all countries been 
regarded as belonging to 'a sphere above civilian interference, 
but also to pursue those policies in which diplomacy as well as 
military considerations must play a part. While popular as- 
semblies in Great Britain and France were questioning their 
leaders as to the poHcies they were pursuing and thus dis- 
tracting their attention from the important business before them 
without contributing constructive suggestions, the German Gov- 
ernment followed without interruption the plans it had decided 
upon in secret council. In the meantime the confidence of the 
people in their government remained practically unshaken. It 
may well be possible to draw a distinction, as President Wil- 
son did in his address to Congress calling for a declaration of 
war, between the German people and their government in re- 
spect to the moral responsibility for the war, in that " it was 
not -with their previous knowledge or approval " that their 
government acted in entering upon the war ; but while ex- 
onerated as an accessory before the fact, the German people, 
with few exceptions, whole-heartedly supported the Government 
once the war had broken out, and were easily persuaded by it 
to become an accessory after the fact. 

Counter-balancing disadvantages. But this freedom of 
the German Government from control by the representatives of 
the people had its weaknesses as well as its advantages, and a 
good case may be made out to prove that it was the rock upon 



52 POLITICAL SYSTEMS IN TRANSITION 

which not only the Government but the empire itself was 
finally wrecked. In an article entitled " Military Strategy and 
Diplomacy," ^ Professor Munroe Smith has pointed out that 
the control of the Government by the military groups, which 
was possible in consequence of the absence of ministerial re- 
sponsibility, robbed the state of the advantage of assuming the 
defensive in entering the war. The diplomatist naturally seeks 
to put his country in the apparent position of being attacked, 
for he knows that the fighting spirit of the country can be best 
aroused in this way and that the alliances, or at any rate the 
friendships of the state, will best endure under such circum- 
stances. The militarist, however, has chiefly in mind the ad- 
vantages of attack and cannot weigh the moral forces which 
may be set in motion by his act of aggression and which may 
in turn take material form in the shape of allies for his enemy. 
No one doubts now that even from the mihtary point of view 
Germany blundered in not balancing against the advantages of 
an attack through Belgium the disadvantages of ranging on the 
side of her enemy the outraged consciences of millions who 
might otherwise have looked upon the war with indifference. 
Belgium became a symbol which raised troops whom acts of 
conscription alone could not have raised. Would an elected 
President with traditions of accountability to public opinion, 
would a Cabinet responsible to an elected assembly have 
blundered in like manner? It is possible, but not probable, in 
view of the actual evidences of the moral restraint imposed 
upon democratic governments by the consciousness that their 
authority is held not by inherent right but as a public trust. 

Diplomatic blunders similar to the invasion of Belgium were 
repeated by the German Government during the progress of the 
war, and it is not difficult to believe that the faith of the Ger- 
man people in their government was somewhat shaken by them. 
The drastic punishment of resistance in Belgium, the sinking 
of the Lnsitania and other passenger ships, the execution of 
Edith Cavell and of Captain Fryatt, the deportations of women 

1 " Political Science Quarterly," March, 1915. 



AUTOCRATIC GOVERNMENTS 53 

from Lille, and the bombardment of London and Paris from 
the air were, indeed, acts which the army staff of the most 
democratic country might have ordered, but which are less 
to be looked for in a country where military policies are sub- 
ject to the criticism of a popular assembly in closer touch with 
common human feeling. With the renewal of the submarine 
warfare and the entrance of the United States into the war 
the full fruits of the military control of diplomacy began to be 
reaped. New chancellors succeeded to the old, not from a 
recognition of the legal right of the Reichstag to demand the 
resignation of those who had blundered and to appoint others 
amenable to its wishes, but as an expedient adopted by the 
Government to strengthen the confidence of the people. That 
confidence was retained in sufficient strength until the tide of 
victory turned against the German armies. Autocracy then 
failed utterly to meet the supreme test, and, after fruitless con- 
cessions at the last moment, collapsed completely, carrying 
the entire constitutional framework with it. It must be left 
to historians of the future to estimate how far the German 
revolution was due to forces from within the empire or to 
pressure from without ; but it cannot be denied that the auto- 
cratic military organization of Germany fought its war in a 
masterly fashion, and so long as it met with temporary suc- 
cess it was able to keep popular support behind it ; had it suc- 
ceeded in the end it would have justified itself in the eyes of 
the people and delayed indefinitely the democratic revolt. For- 
tunately the odds were against it in numbers and in resources, 
and with defeat came the disillusionment of the people — a dis- 
illusionment all the greater because of the supreme confidence 
they had placed in their rulers. 

The new German Government. The permanence of the 
new German Government brought about as a result of the 
revolution of November, 1918, is still a doubtful question, but 
it has now laid new and firm foundations upon which to build, 
and for the time being it gives promise of stability. It repre- 
sents a new order in Germany, far more unlike the old than 



54 POLITICAL SYSTEMS IN TRANSITION 

has yet been impressed upon the pubHc in foreign countries. 
One of the last acts of the Kaiser's administration was a de- 
cree of October 28, creating ministerial responsibility on the 
part of the executive to the Reichstag. In the words of the 
decree " a new order comes into force which transfers the 
fundamental rights of the Kaiser's person to the people." But 
the crisis was too serious for half-way measures to satisfy. 
With the resignation of the Kaiser a provisional government 
was set up consisting of the leaders of the radical parties in 
the Reichstag, which promptly decided upon the election of a 
constituent national assembly endowed with authority to draw 
up a new constitution. The elections took place on January 
19, 1919, and resulted in a victory for a Republic as the new 
form of government. L'niversal suffrage without restriction 
of sex was adopted and the system of proportional representa- 
tion introduced. The latter reform, which at the same time 
did away with the unequal distribution of seats prevailing in 
former elections, was carried out after the usual continental 
scheme of voting by lists. Germany was divided into 38 
constituencies, each returning from 6 to 16 members. The 
lists were made up by the several political parties and contained 
the names of as many candidates as there were seats, the 
names being arranged in order of priority by the party. Votes 
were cast not for individual candidates but for the lists of 
candidates, and in proportion to the strength of the party vote 
one or more of the names on the party lists were declared 
elected, beginning with the more important names at the top. 
This method insured the election of at least the leaders in each 
of the more important parties. The elections resulted in a vic- 
tory for the Moderate ("Majority'") Socialists and a new 
party of advanced Liberals calling themselves the Democrats. 
The more conservative Catholic Center came next, with the radi- 
cal Independent Socialists and the National Party and Ger- 
man People's Party, the two latter consisting of adherents of 
the old National Liberal and Conservative Junker parties, 
bringing up the rear. 



AUTOCRATIC GOVERNMENTS 55 

The problem of federalism. The debates in the Convention 
at Weimar, which undertook the establishment of a new consti- 
tution for Germany, revive for the student of government the 
critical years from 1787-1789 when the fate of the American 
federal republic was in the balance. At the same time they 
throw valuable light upon some of the present problems of 
Federal Government. Immediately upon the abdication of the 
Emperor separatist tendencies among the German states began 
to manifest themselves. Should Germany continue to be a 
federal state, and, if so, should Prussia, its largest member, 
continue to dominate the federation? The draft constitution 
prepared by Dr. Preuss, German Secretary of the Interior, pro- 
posed that Prussia should be divided up into a number of au- 
tonomous states representing roughly the states absorbed by the 
original Prussia in 181 5 and 1866. A unified Prussia, con- 
sisting of more than half the population of the entire Republic, 
would obviously create an unstable balance of power. But if 
Prussia were to be divided up to help to equalize the member- 
ship of the federation, the other German states which had been 
granted special privileges by the Constitution of 187 1 would 
be called upon to yield them up to the central government. 
Some few German publicists advocated the establishment of a 
unitary Germany which would abolish state lines completely, 
but the proposal did not meet with any general acceptance. 

The decision finally reached by the Assembly was in favor 
of maintaining the unity and federal character of the former 
empire. A National (Federal) Council was created; supplant- 
ing the former Bundesrat, in which the states were given re- 
presentation in proportion to their population. Prussia was 
permitted to remain intact, but provisions were adopted which 
sought to break up a solid Prussian vote by placing half of the 
Prussian votes at the disposal of the Prussian provincial ad- 
ministrations. In the division of powers between the central 
government and the separate states a far wider range of 
jurisdiction is assigned to the empire ^ than is assigned to the 

^ The term Reich is still used, and no inconsistency was seen in mak- 



S6 POLITICAL SYSTEMS IN TRANSITION 

Federal Government in the United States. Indeed, so com- 
plete is the possible control which the empire may exercise 
over the life of the country that Professor Preuss maintains 
that the empire is in reality a unitary state preserving the 
forms of a federal government. Curiously enough, one fea- 
ture of federalism abandoned in the United States in 1789 still 
remains in the new German constitution, namely, that " the 
laws of the empire shall be executed by the state authorities 
unless otherwise provided by national law." 

Organization of the Government. The National (or 
Federal) Assembly, which replaces the former Reichstag, dif- 
fers from that body in a number of important particulars. The 
system of election by proportional representation is provided 
for, as well as universal suffrage for men and women over 20 
years of age. The power of the Assembly over legislation be- 
comes paramount, subject only to a veto by the National Coun- 
cil, which can be overcome by a two-thirds majority of the 
Assembly. A striking innovation is introduced in the form of 
a national referendum on federal legislation, which can be taken 
either upon the decision of the President, or upon petition of 
one-twentieth of the qualified voters when one-third of the 
Assembly demands that the promulgation of the law be de- 
ferred. Measures may be initiated by the people upon peti- 
tion of one-tenth of the qualified voters, but in such cases the 
Assembly shall first pass upon the bill, and if it act favorably 
the popular vote will not take place. Similar provisions for 
the use of the initiative and referendum in respect to consti- 
tutional amendments are introduced. 

The President of the Republic. The President is elected 
by the people for a term of seven years, and provision is made 
for his removal by popular vote upon demand of a two-thirds 
vote of the National Assembly. A negative vote of the peo- 
ple upon the question of removal has the effect of dissolving 

ing the first article of the constitution announce that " the German 
empire is a republic." The word " commonwealth " has been sug- 
gested as a more descriptive translation. 



AUTOCRATIC GOVERNMENTS 57 

the National Assembly. The powers of the President re- 
semble those of the President of the United States, with the 
difference that the acts of the President of the German Re- 
public require for their validity the counter-signature of the 
Chancellor or of the other Minister within whose province the 
act falls. In consequence the President is relieved of respon- 
sibility and the extensive powers conferred upon him are ren- 
dered more or less nominal. Both the Chancellor and the 
Ministers require for the administration of their offices the con- 
fidence of the Assembly, and each of them must resign if the 
Assembly by a formal resolution withdraws its confidence. A 
system of cabinet government is thus created in which minis- 
terial responsibility is individual rather than collective as in the 
case of Great Britain and France. 

The protection of fundamental rights. Industrial councils. 
In respect to the second function of a constitution, the de- 
termination of the relations of the citizen body to the Govern- 
ment, a " bill of rights " is drawn up which contains the usual 
guarantees of equality before the law, of freedom of speech 
and of the press, of immunity from searches and seizures, 
of freedom of Assembly and other personal rights. Exception 
may, however, be made by national law, so that it is not clear 
what will be the actual measure of individual liberty to be 
enjoyed by the German citizen. Besides these provisions the 
Constitution contains a number of details regulating the " com- 
munity life," including marriage, the protection of motherhood 
and of children, and self-government in cities. Separation of 
church and state is provided for, and general principles are 
laid down with regard to education. A unique section dealing 
with " economic life " lays down the principles of freedom of 
contract, the right of private property, the expropriation of 
landed property, where necessary, with compensation, the 
" socialization " of certain private enterprises by transfer to 
public ownership, and, when urgently necessary for the com- 
mon good, the combination of business enterprises into auto- 
nomous bodies in which employers and employees shall have 



58 POLITICAL SYSTEMS IN TRANSITION 

a share in the management and the administration of the whole 
shall be conducted for the common good. In addition an im- 
portant step is taken in the recognition of the right of co- 
operative control of industry by both employers and employees. 
Wage earners and salaried employees are to be represented in 
local workers' councils, organized in each establishment, as 
well as in district workers' councils in each economic area, 
and in a National Workers' Council. By adding to their mem- 
bership representatives of the employers and of the interested 
public these workers' councils become " economic [industrial] 
councils," representing all substantial vocational groups. The 
National Economic Council at the top of the system is made in 
a degree a legislative body by the requirement that drafts of 
fundamental laws relating to social and economic policy shall 
be submitted to it by the Cabinet before introduction into the 
National Assembly. At the same time the Economic Council 
has the right itself to propose such measures for enactment 
into law.^ 

General character of the new Constitution. It is clear 
that the new German Constitution is a document of funda- 
mental importance, and could it be considered apart from the' 
record of Germany during the years of the war it would be 
welcomed with acclaim by the other democratic nations of the 
world. Taken at its face value it not only represents an at- 
tempt to establish a truly democratic form of government, but 
it contains many elements of intrinsic worth. In organization 
it seems to combine both the promise of efficiency, through its 
provisions for cooperation and finality of decision between the 
several departments of the Government, as well as the promise 
of effective popular control through its provisions for the modi- 
fied use of the initiative and the referendum. In the social and 
economic program, set forth at great length, it proposes to 

lA scholarly translation of "The Constitution of the German Com- 
monwealth," by W. B. Munro and A. N. Hdfcbmbfe, has been ptib- 
lishbd by the World Peace Foundation. The word " commonwealth " 
IS used by the translatbrs as the present equivalent of Reich. 



AUTOCRATIC GOVERNMENTS 59 

reconcile the conflicting demands of individualism and of 
socialism, and while assuring the protection of the economic 
liberty of the individual and the right of private property it 
seeks to regulate both in the interest of the common needs of 
the public at large. Its provisions for the establishment of 
industrial democracy closely approximate to the program of the 
British Labor Party and the recommendations of the Whitley 
Report.^ Can it be regarded as a final break with the old 
order, and the repudiation not only of its representatives but 
of its political principles? Observers from without may hesi- 
tate to recognize the value of so sudden a conversion. But it 
must be remembered that the opponents in Germany of the old 
order were far more numerous than their representation in the 
Reichstag, by reason of the unequal distribution of seats, would 
indicate. Will the new constitution receive the support of a 
substantial majority of the people and become a permanent basis 
of government ? The outlook is not without hope. During the 
debates of the Constitutional Convention the great body of the 
people appeared to be but little interested in the task under- 
taken. The effects of generations of political servitude can- 
not be overcome in the course of a single year. A political 
consciousness must be created by the actual practice of self- 
government. But there is good promise for the future in the 
instinctive recognition by the people of the necessity of law 
and order and in the sense of duty to the State so carefully 
inculcated by their former rulers. 

The Government of Austria-Hungary. The federal char- 
acter of the Austro-Hungarian empire differed in essential 
respects from that of Germany. It consisted of a loose union 
between two large states, Austria and Hungary, both of which 
were unitary in form although containing within their borders 
numerous nationalities of alien race and language. The joint 
goA'ernment of the Dual Monarchy was limited to foreign af- 
fairs, war, and finance, and was conducted by means of a legis- 
lature, consisting of delegations from the two states, and an 

1 See below, p. gS. 



6o POLITICAL SYSTEMS IN TRANSITION 

administration consisting of the emperor-king and ministers 
directing the three departments of the Government. In theory 
ministerial responsibility existed in the joint government of the 
dual state and in the separate governments of Austria and 
Hungary; but in practice the legislative assemblies were able 
to exercise very little restraint upon the administration. This 
v^^as chiefly due to the fact that there existed a multiplicity of 
political parties and factions, representing not only the diver- 
gent economic and political interests of the people but also the 
numerous races of the two states with their separate nation- 
alistic claims. The result was that the empire, instead of be- 
ing obliged to select ministers who had the confidence of the 
representative assemblies, was able to select men who could 
succeed best in playing off one party against another and thus 
remain themselves in large measure free from control. The 
revolution of 1918 took, therefore, from the start a separatist 
turn. Czechoslovakia, consisting of the Austrian provinces of 
Bohemia and Moravia and the Hungarian province of 
Slovakia, declared its independence,^ as did also Croatia, 
Slavonia, and Dalmatia, which, together with the dependent 
provinces of Bosnia and Herzegovina, joined with Serbia and 
Montenegro to form a new Jugo-Slav state. Hungary then set 
up a separate republic, leaving Austria proper isolated. 

Dangers attending the break-up of Austria-Hungary. 
The polyglot empire thus met the inevitable doom predicted for 
it long before 1914; but it is of no little interest to the student 
of government to note that evil as well as good has attended 
its fall. Four new and distinct states with their rivalries and 
jealousies now take the place of the old confederation, and al- 
ready there are signs that they cannot live together in any degree 
of friendliness. Until the last year of the war it was the con- 
viction of many well-informed observers that the true solution 

^It is an interesting point of international law to note that the in- 
dependence of this state was recognized by the United States before it 
had been able to do more than declare its desire to be a state through 
a national committee speaking for it in a foreign land. 



AUTOCRATIC GOVERNMENTS 6i 

of the problem of the Austro-Hungarian nationaHties was not 
the complete independence of the distinct communities, but 
rather autonomy in matters of local government together with 
constitutional rights as members of a federal empire. It was 
thought that autonomy in local matters would suffice to meet the 
fair claims of national groups to the free pursuit of their own 
ideals of culture in matters of rehgion, literature, art, festiv- 
ities, and other forms of self-expression ; while on the other 
hand the subordination of those groups as members of a 
federal empire would tend to remove the barriers of suspicion 
and discord which inevitably arise between rival neighboring 
communities, and would facilitate the friendly intercourse of 
the states within the federation. Such a federation would, it 
was pointed out, make impossible the creation of competitive 
tariffs and would put the railways and the ports of the several 
states at the common disposal of all. Mr. H. N. Brailsford 
expressed the economic aspect of the situation by saying that 
" it is easy to denounce Austria-Hungary as a ' ramshackle 
Empire ' and to call for its dismemberment, but the more one 
contemplates the strange fact of the union of these many races 
in one political unit, the more one is driven to the conclusion 
that there is a solid and natural reason for their combination. 
The reason is geographical and economic." ^ 

The protection of minorities. One further feature of the 
proposed federation of the races of Austria-Hungary is of 
special interest to students of American Government. The 
great problem of all federal states where there is any large and 
coherent minority with separate interests of its own is to 
secure the protection of the fundamental rights of the minority 
without unduly restricting the activities of the local govern- 
ments. In the United States, for example, the 14th and 15th 
amendments to the Constitution protect the negro in his rights 
of life, liberty, property and suffrage against the encroachment 
of the state governments, leaving him in respect to less im- 
portant rights subject to the local law. The case of the various 

1 " A League of Nations," p. 100. 



62 POLITICAL SYSTEMS IN TRANSITION 

nationalities of Austria-Hungary presents a striking illustration 
of the need of such guarantees, owing to the fact that scarcely 
anywhere can the boundary lines of nationality be drawn so 
as not to include within the national group a minority of an- 
other race. It was proposed, therefore, that not only should 
the several constitutions of the autonomous groups contain a 
guarantee against the oppression of racial and religious min- 
orities, but that the Federal Constitution should likewise embody 
those guarantees. If this were done, " Vienna would see," as 
Mr. Brailsford says, " that the Czechs did not oppress the 
Germans in Bohemia, and Budapest would be vigilant for the 
Magyars in Transylvania." ^ 

Conditions imposed by the Peace Conference. The Peace 
Conference at Paris was fully aware of the difficulties attend- 
ing the recognition of the independence of the former compo- 
nent parts of Austria-Hungary; and being in a position to 
dictate terms to the new states it imposed conditions upon 
their admission into the family of nations. Austria itself, 
shorn of much of its territory, acknowledges under the treaty 
that the obligations looking to the protection of minorities are 
matters of international concern over which the League of 
Nations has jurisdiction. She assures equality before the law 
and complete protection of life and liberty to all inhabitants 
of Austria without distinction of birth, nationality, language, 
race, or religion, together with the right to the free exercise 
of any creed and to the free use of any language in public 
or private, with reasonable facilities to those of non-German 
speech for the use of their own language before the courts. 
Equal opportunities in schools and other educational establish- 
ments are promised, and in districts where citizens of non- 
German speech exist in considerable number facilities must be 
given for the instruction of the children in their own language, 
and a due share of the public funds is to be provided for the 
purpose. The treaty with Hungary imposes like conditions, 
and the same result is sought in the case of Czechoslovakia 

1 Ibid., p. 107. 



AUTOCRATIC GOVERNMENTS 63 

and Jugoslavia by the requirement that the new states agree 
to conclude treaties with the principal allied and associated 
powers for the protection of racial and religious minorities. 

Difficulties of the situation. How far-reaching some of 
these demands of the Conference are, and how difficult is the 
problem with which Austria, for example, is faced, assuming 
the most sincere attempt to carry out her obligations, can be 
gathered by a comparison with the policy followed by the 
United States in dealing with similar questions. Conditions 
are, of course, essentially different in the United States, since 
the country developed a distinct English-speaking national char- 
acter long before the present foreign-language elements came 
into its midst; whereas in Austria a-nd Hungary the diverse 
races and languages have been so long settled upon the soil 
that they have acquired prescriptive rights which are too deep- 
seated to be readily abandoned. Our big cities have their 
Italian quarters and their Polish, Jewish and Hungarian 
quarters, but the American people would hear with amazement 
a proposal not only that Italian or Polish should be the lan- 
guage of the court-rooms and the medium of instruction in 
the public schools in those quarters, but that the administration 
of those matters should be subject to the supervision, not of 
New York or of Washington, but of the League of Nations 
sitting as an international executive council. 

The fall of autocracy in Russia. The breakdown of the 
Russian autocratic regime during the war was due partly to 
political and partly to economic problems. The Government of 
Russia enjoyed, as we have seen, the initial advantage of be- 
ing able to reach its decisions without the delays incident to 
parliamentary control and of being able at the same time to 
count upon the prompt obedience of the people. But while 
sharing this advantage with Germany, the administrative or- 
ganization of the Russian Government was immeasurably in- 
ferior to that of its opponent, and at the same time the spirit 
of national unity which characterized Germany was much 
weaker in Russia and the response of the people was less dis- 



64 POLITICAL SYSTEMS IN TRANSITION 

ciplined and intelligent. Treason in the Government began to 
manifest itself early in the war, due largely to the control which 
Germany had obtained over the business life of the country; 
but it was not successful in impeding the operations of the 
army until the summer of 1916. In the meantime the need 
of military supplies, which had been felt from the very be- 
ginning, and the inadequacy of the transportation service to 
distribute food to the centers of population provided the oc- 
casion for the revolution which the economic and political 
system of the country had long invited. In the face of the 
defeat of its armies and the starvation of its chief city Russian 
autocracy was unable to maintain its hold. The lesson of the 
war with Japan in 1904-1905 should have been a warning that 
autocracy cannot hope to survive a war of exhaustion unless 
it has succeeded in winning such a degree of loyalty on the 
part of its subjects as to lead them to submit to the yoke 
without compulsion. Where the German Government had de- 
nied political freedom to its people, it had at least granted 
them an economic freedom which won tlieir allegiance. The 
Government of the czar attempted to carry the double burden 
of fighting a formidable enemy from without and at the same 
time maintaining an enforced obedience from within. 

Political importance of the Russian revolution. So com- 
plete has been the transformation of Russian political institu- 
tions as a result of the revolution of 191 7 that it will be many 
years before it will be possible to present a final estimate of 
the situation. But the lessons of the Russian revolution even 
in its present stages are of tremendous significance not only 
for the future of government in Russia but for the future of 
government in all the countries of Europe and, indeed, of 
America and Asia as well. Like those of the great French 
Revolution, its doctrines have swept like a flood-tide over the 
surrounding countries, and though the waters may recede, as 
did the waters of the French revolution under the absolute 
government of Napoleon, it is safe to predict that for years to 



i 



AUTOCRATIC GOVERNMENTS 65 

come seeds of new political thought will be found to have 
taken root in what would, but for that flood, have been arid 
soil. The French Revolution gave a new meaning to political 
liberty; it proclaimed that men had certain rights which the 
State had not given him and which the State could not take 
away. Those rights were the fundamental rights which be- 
longed to human nature as such, and in respect to those rights 
all men were equal. Other rights might exist under sanction 
of the law, such as the ownership of great estates, but being 
contrary to those fundamental rights they could have no real 
value. Now it is not difficult to point out the fallacies in- 
volved in much of the French revolutionary doctrine, and the 
excesses committed in the attempt to give practical application 
to that doctrine will ever be one of the world's tales of horror ; 
but at the same time no student of history will fail to recog- 
nize the basis of truth underlying the radical theories, and to 
appreciate the extent to which democratic ideals of a succeed- 
ing generation were built up upon that basis.^ 

The heritage of the new government. The Russian revolu- 
tion introduces a similar situation of political revolt founded 
upon acute economic distress ; but owing to the progress of in- 
dustrial concentration during the nineteenth century, and to the 
development of radical plans of economic reform in the shape 
of Socialism and of SyndicaHsm, the Government which has 
emerged from the revolution is organized upon an industrial 
as well as upon a territorial basis. In analyzing the character 
of the new Soviet Republic it is important to distinguish be- 
tween the organization of the Government as a legislative and 
administrative agency and the political principles which it pro- 
poses to put into effect. The organization of the Government 
is radically different from the familiar systems of other con- 
tinental countries, but it is not necessarily undemocratic, and 
could conceivably be applied in other countries which utterly 

^ An excellent discussion of the subject may be found in C. D. 
Burns, " Political Ideals," Chap. VII. 



(^ POLITICAL SYSTEMS IN TRANSITION 

repudiate the principles by which those who control it are 
animated. It can best be understood by a reference to the 
institutions of local self-government in Russia before the war. 
The local mirs and the volosts, the larger zemstvos in the prov- 
inces, and the municipal dumas still appear, like stones from 
a demolished edifice, in the walls of the new political struc- 
ture. 

Local government before the revolution. Beginning with 
the smallest unit of self-government, the village, we find the 
village mir composed of the peasant householders of the vil- 
lage, not including the land-owners as such, if they were of 
the nobility. The peasants thus formed a class apart, and as 
they constituted more than three-fourths of the population they 
were within the restricted sphere of their local interests al- 
most a law unto themselves. The volost, or canton, or town- 
ship, was the next highest unit of government, and it con- 
sisted of a number of mirs with an assembly composed of 
delegates elected by the mirs. It is here that we note the 
presence of that characteristic feature of Russian Government 
which is carried to the nth degree in the organization of the 
Soviets, namely, the indirect election of officials. The volost 
was an old unit of government given new administrative and 
judicial duties under the reform decrees of the sixties. 
Through its assembly it brought the semi-independent -mirs 
within the control of the central government ; but as in the case 
of the mir its powers were very limited, and it was more an 
agent of the central government than an organ of local self- 
government. Being composed solely of the peasantry it em- 
phasized once more the organization of the people by distinct 
classes. 

The next larger units of government were the district and 
the province, each with its representative assembly known as 
the zemstvo. The provincial assemblies consisted of dele- 
gates from the district assemblies and derived all their powers 
from the latter bodies. Suffrage for the district zemstvo was 
sharply restricted both by property qualifications and by the 



AUTOCRATIC GOVERNMENTS e^-j 

indirect election of the delegates of the peasantry through their 
volosts. The powers of the zemstvos were in theory limited 
to local economic interests, but it proved difficult to draw 
the line between their jurisdiction and that of the central gov- 
ernment. At the same time the activities of the zemstvos were 
constantly subjected to interference from the provincial gov- 
ernors, whose consent had to be obtained before the decisions 
of the zemstvos could be carried into effect. Similar to the 
zem&tvos in the rural districts were the municipal dumas, 
which were elected by a three class ("curia") system based 
upon property qualifications and bearing a resemblance to the 
electoral system for the lower house of the Prussian Landtag.^ 
The electoral system of the Duma. In the case of the 
Duma of the empire, as in that of the provincial zemstvos, 
democracy was defeated by a method of indirect elections 
which removed the voter in some instances as many as four 
degrees from his candidate. Under a new law of 1907 rep- 
resentatives to the Duma were elected by a series of electoral 
colleges in each of the provinces, which were in their turn 
elected by electoral assemblies representing the three classes 
of landed proprietors, townspeople, and peasants. The larger 
landed proprietors sat in these assemblies in their own person 
and were thus but two degrees removed from their candidate ; 
the lesser proprietors combined to send delegates to the as- 
semblies, and were thus three degrees removed from their 
candidate; while the peasantry elected delegates to the assem- 
blies through the intermediary of their indirectly elected 
volosts, and were thus four degrees removed from their candi- 
date. The urban population elected delegates directly to the 
colleges, but by a class system of voting which gave the ad- 
vantage to large property holdings. Industrial workers were, 
like the peasantry, specially represented by delegates to the 
colleges elected on the basis of one for every 50 employees. 

1 Details of the development of local political institutions in Russia 
before the revolution may be obtained from a brief volume by Profes- 
sor Paul Vinogradoff, " Self-Government in Russia." 



68 POLITICAL SYSTEMS IN TRANSITION 

It is obvious that the system, without actually depriving the 
citizen of a vote, rendered that vote as ineffective as possible 
against the influence of the Government in the election.^ 

Organization of the new Soviet government. A knowl- 
edge of the representative system employed for the various 
representative bodies in Russia before 1917 is necessary to an 
understanding of the peculiar character of the new Soviet 
government. By comparison with the American electoral sys- 
tem, where the individual citizen votes directly for city, county, 
state, and federal officials, the Soviet Constitution continues the 
indirect methods formerly in operation in Russia, but places 
them upon a squarely democratic, or rather proletarian and 
peasant basis. The organization of the Soviet government may 
be best understood by picturing it in the shape of a huge 
pyramid at the base of which is the entire citizen body of the 
Republic. Beginning, as in the description of Russian self- 
government before 19 17, with the smallest units of govern- 
ment, we find in the cities " Soviets " or " councils " composed 
of deputies of the industrial workers who, as we have seen 
above, had been kept as a class apart under the old electoral 
system. After the revolution soldiers, who in most cases 
were peasants, were admitted to the organization, and we hear 
of the Petrograd Council (Soviet) of Workmen's and Peas- 
ants' Deputies. Corresponding to this organization in the cities 
is the village soviet, based upon the old village mir, which, like 
the organization of workmen in the cities, was composed of 
peasants as a class apart, and which, with the complete col- 
lapse of all central authority, immediately began to assume 
new powers. It is upon this double foundation of urban and 
rural Soviets that the elaborate superstructure of Soviet gov- 
ernment has been built up. 

Successive congresses of local Soviets. The Constitution 
of the Russian Socialist Federated Soviet Republic, adopted 

1 A more elaborate explanation may be found in an essay entitled 
" The Representative System in Russia," by Professor Paul Miliou- 
koff, in " Russian Realities and Problems." 



AUTOCRATIC GOVERNMENTS 69 

July 10, 1918, describes (Article III) the organization of the 
Government beginning with the central body and descending to 
the local bodies, but it is at once clearer and more logical if 
we follow the reverse order. The composition of the indi- 
vidual soviet is, in the cities, on the basis of one deputy for 
each 1000 inhabitants, the total to be not less than 50 and 
not more than 1000 members/ In the towns, villages, and 
hamlets of less than 10,000 inhabitants there is to be one 
deputy for each 100 inhabitants, the total to be not less than 
3 and not more than 50 deputies for each settlement ; but it 
is expressly provided that in small rural settlements all ques- 
tions shall be settled at general meetings of voters, as in the 
village mirs. The village Soviets send representatives, on the 
basis of one delegate for 10 members of the soviet, to the rural 
congresses of Soviets, which correspond to the former volost 
assemblies. In turn these rural congresses of Soviets send 
representatives to a county congress of Soviets, which cor re- 
ponds to the old district zemstvo. Again in their turn the 
county congresses send representatives to the provincial con- 
gress, to which the urban Soviets also send representatives. 
It is interesting to note that in the provmcial congress, which 
is the first body in which delegates from' both urban and rural 
constituencies meet, representation is accorded to the cities on 
the basis of one for each 2000 voters, and to the rural districts 
on the basis of one for each 10,000 inhabitants. Once more, 
the provincial congresses send representatives to the regional 
congress, which is limited to 500 members for the entire region, 
and in which there is a further distinction between city voters 
and rural inhabitants.^ 

^ It is to be noted that the elections in the cities are conducted by 
factories and occupational groups (lawyers, doctors, teachers, etc.) 
and not by residential precincts and wards. In the country districts 
the divisions remain territorial as before, but the population, being 
agricultural, needs no separate trade organization. 

- The reader who is baffled by the complexity of the Russian govern- 
mental structure may recall and make comparisons with the following 
subdivisions of the United States : federal court circuits embracing a 



70 POLITICAL SYSTEMS IN TRANSITION 

The central government of Russia. The next step leads 
us to the All-Russian Congress of Soviets which is the " su- 
preme power " of the Republic. This national legislative body 
is composed of representatives of the urban Soviets on the 
basis of one delegate for each 25,000 voters, and of repre- 
sentatives of the provincial congresses on the basis of one dele- 
gate for each 125,000 inhabitants. But though it is the supreme 
power of Russia, the All-Russian Congress of Soviets is not 
itself the actual governing power, but rather the controlling 
power of the Government. For the Congress in its turn elects 
the All-Russian Central Executive Committee of not more than 
200 members, which is responsible to the Congress and is " the 
supreme legislative, executive, and controlling organ " of the 
Republic. It directs the activities of the local soviet bodies 
and coordinates and regulates the operation of the Constitu- 
tion and the resolutions of the Congress. In turn the Central 
Executive Committee creates a special cabinet known as the 
Council of People's Commissaries, which is entrusted with the 
general management of the affairs of the Republic, and which, 
subject to the control of the Executive Committee, may issue 
decrees and orders necessary for the proper conduct of govern- 
ment affairs. The Commissaries stand at the head of the 17 
commissariats or departments of government corresponding to 
the departments of 'administration in other countries. Each 
commissary has an advisory " college " or committee, the mem- 
bers of which are appointed by the Council and of which he 
is the president. 

Indirect versus direct control of representatives. Con- 
sidered as a purely political contrivance the organization of 
the Soviet Republic is one of the most remarkable schemes 
of government ever adopted, and as an experiment in a peculiar 
form of indirect democracy it would be watched with the 

number of states, the states themselves, electoral districts for mem- 
bers of the House of Representatives embracing a number of coun- 
ties, electoral districts for state senators, counties, townships, and 
cities. 



AUTOCRATIC GOVERNMENTS 71 

greatest interest by statesman and student alike were it not 
that the conditions under which it is being tried out make 
it impossible to judge of its merits or demerits. To an Amer- 
ican who is accustomed to vote directly for city, county, state 
and federal officials, and who believes that by this means he 
can exercise direct control over them and call them personally 
to account for their actions, it will come as a surprise to ob- 
serve what purports to be popular government so organized 
as to make bureaucratic control almost inevitable. Putting 
aside the suggestion that it was actually introduced for that 
purpose, we may consider an argument offered by its supporters 
to the effect that "it makes the highest official responsible 
to the individual peasant in the remotest corner of the country." 
Theoretically this is true, but the responsibility is made effec- 
tive through seven or eight stages of indirect control super- 
imposed upon indirect control. The system might work quite 
successfully if citizens and their delegates and their delegates' 
delegates were all cogs in the wheels of an elaborate mechan- 
ism, so that pressure applied at one end of the system would 
inevitably be felt, in however small a degree, at the other end. 
But elected officials are after all human beings, and even as- 
suming the highest honesty on their part no observer of the 
practical workings of democracy in countries where it has 
been tried out can have any great faith in a system of popular 
government which removes the electorate by so many degrees 
from the ultimate governing officials.^ Even if the Russian 
people were a unit on fundamental principles and divided by 
no greater differences of opinion in matters of daily legisla- 
tion than mark the two great political parties which control 
the United States, it is scarcely conceivable that the system of 
government provided by the Soviet Constitution could be kept 
free from the control of a bureaucracy. The experiment, 

1 Before 1913 United States Senators were elected by the legislatures 
of the several States, and the evils which attended even that limited 
form of indirect election are sufficiently familiar to all students of 
politics. 



72 POLITICAL SYSTEMS IN TRANSITION 

were the circumstances attending it not so tragic, would be 
one to which the attention of public men in every country 
would be earnestly drawn. 

Distinction between the Soviet organization and Bolshe- 
vist principles. It is important to distinguish sharply be- 
tween the framework of government provided by the Soviet 
Constitution and the political principles by which those who 
framed the constitution were animated. The Bolsheviki, who 
were the radical wing of the Social Democratic party/ con- 
trolled the drafting of the Constitution and their theories are 
written into it in the Declaration of Rights, which forms 
Article I of the Constitution, and in the provisions for the suf- 
frage contained in Article IV. The Declaration of Rights 
calls for the " socialization " of land by the abolition of all 
private property in land and the apportionment of the land as 
national property among husbandmen in the measure of the 
ability of each to till it, without any compensation to the former 
owners. In like manner forests, treasures of the earth, water 
power, model farms and agricultural enterprises, and banks 
are declared to be national property. Factories, mills, mines, 
railways and other means of production and transportation are 
turned over to the control of the workmen subject to the regu- 
lations of a Supreme Soviet of National Economy. Article II 
frankly states that during " the present transition period " the 
Constitution involves the " establishment of a dictatorship of 
the urban and rural proletariat and the poorest peasantry . . . 
for the purpose of abolishing the exploitation of men by men 
and of introducing Socialism-, in which there will be neither 
a division into classes nor a state of autocracy." At the same 
time Article I provides that " during the progress of the de- 
cisive battle between the proletariat and its exploiters, the ex- 

1 Considerable divergence has arisen in the interpretation of the 
name " Bolsheviki." As explained by Lenine, the term refers to a 
"majority" faction in the Social Democratic Congress in 1903. This 
faction later became extremely radical, and although no longer a 
majority it continued to retain the name. 



AUTOCRATIC GOVERNMENTS 73 

ploiters can not hold a position in any branch of the Soviet 
Government " ; while Article IV excludes from the suffrage 
" persons who employ hired labor in order to obtain from it 
an increase in profits," persons who possess an income de- 
rived from invested capital, private merchants, trade and com- 
mercial brokers, the clergy, and other obnoxious persons. 

Federal character of the future Soviet Republic. A final 
point of no little interest in the Constitution of the Soviet Re- 
public is the provision made for the subsequent creation of 
a federated state. We have already seen that the organiza- 
tion of the Soviet Government introduces a new division into 
Russia known as the " region." The Constitution provides 
that the All-Russian Congress and the Central Executive Com- 
mittee shall establish boundaries for the regional soviet unions, 
which are to be made autonomous in cases where they " differ- 
entiate themselves by a special form of existence [ ? way of life, 
customs] and national character." Permission is granted by the 
Constitution to the Soviets in the different parts of the Republic 
to decide whether or not they desire to participate in the 
Federal Government. It is apparently contemplated that dis- 
tinct peoples, such as the Lithuanians, the Letts, the Finns, 
the Ukrainians, the Georgians, and others, a number of whom 
had already set up independent governments at the time the 
Constitution was adopted, shall ultimately become distinct auto- 
nomous members of a Federated Republic, — " a league," as the 
Constitution expresses it, " free and voluntary, and for that 
reason all the more secure." The Constitution does not, how- 
ever, work out the dividing line between the powers of the 
central government and those of the member states. 



CHAPTER IV 

COUNTRIES WITH DEMOCRATIC GOVERNMENTS 

WE may now turn from the consideration of the changes 
brought about in the political institutions of those 
countries whose governments were to a greater or less degree 
autocratic, and study the effect of the war upon the political 
institutions of two of the great democratic states of Europe, 
Great Britain, and France. In the case of the autocratic 
countries the war completely transformed their governmental 
systems. Not only was autocracy driven from its place of 
power, but with it went even those elements of popular gov- 
ernment which had been the subservient tool of autocracy. 
In the case of Germany local self-governing institutions sur- 
vived; in the case of Russia, Austria, and Hungary, they too 
were swept away by the high tide of revolution. By contrast, 
the great democratic countries came through the ordeal with 
their former governmental systems structurally intact. France 
and Italy suffered the least in respect to changes in their gov- 
ernments, owing to the fewer traditions embodied in their con- 
stitutions. Great Britain, with older traditions of free gov- 
ernment, found it necessary to introduce far-reaching changes 
which must mark for all time a turning point in its political 
history. The Defense of the Realm Act, though pointing not 
forward towards democracy but backward towards autoc- 
racy, must hereafter take its place for the student of history 
with the great documents like Magna Charta and the Bill of 
Rights, which are landmarks of the British Constitution. 

Democracy at a disadvantage in time of war. Case of 
Great Britain. We have seen that autocracy possessed an 
initial advantage in the beginning of the war by reason of the 
ready adaptability of its political system to the complex organ- 

74 



DEMOCRATIC GOVERNMENTS 75 

ization of a national fighting machine. If modern war is 
fought not between armies but between peoples, if it requires 
the transformation of the entire economic and social life of a 
nation, so that processes of production and distribution, hitherto 
left to the operation of " natural " laws, must be minutely regu- 
lated and individuals are no longer to be free in the choice of 
their pursuits, it is clear that democracy can be no match for 
autocracy unless it temporarily adopts autocratic methods. 
Popular control must give way to a unity of command which 
can issue orders without the delay of discussion in Parliament, 
and which can pursue its plans without being called to account 
until the final result has been accomplished. This conversion 
of a democracy into an autocracy was naturally all the more 
difficult in a country such as Great Britain where the tradi- 
tion of individual liberty was strong and where the Government 
possessed practically no agencies for the new work which it 
was called upon to do. The complete unpreparedness of the 
British Government for the colossal task that was imposed upon 
it was only matched by a corresponding failure on the part of 
the public to realize the extent to which its own traditional 
rights would have to give way before the exigencies of a 
national crisis. Democracy awoke but slowly to the realiza- 
tion that it could only save itself by abandoning for the time 
the very principles of freedom in defense of which the battle 
had been begun. 

British cabinet government and war policies. The pri- 
mary political problem before the British Government during 
the course of the war was to secure the fullest measure of 
unity of control and of unhampered authority, while at the 
same time it had to maintain the confidence of Parliament and 
of the people. It may be observed in passing that government 
by Parliament through the agency of a responsible ministry 
had a decided advantage in this respect over the system of 
divided authority prevailing in the United States. We shall 
later see in detail the numerous obstacles placed in the way of an 
efficient war administration by the constitutional checks and 



76 POLITICAL SYSTEMS IN TRANSITION 

balances established between the legislative, executive, and 
judicial branches of the American Government. Cabinet gov- 
ernment, combining in the same hands the powers of the execu- 
tive and legislative departments, made the assumption of prac- 
tically absolute power an easy step. The control of Parlia- 
ment, exercised normally by means of questions and interpel- 
lations, could be kept in reserve and brought into exercise only 
when there was a general feeling that the Government was be- 
coming deficient in its task. So long as the Cabinet could re- 
tain the confidence of Parliament it was able to run the country 
with as free a hand as if it possessed absolute power under 
the Constitution. There were no constitutional limitations to 
restrict its authority and no courts to question the validity of 
its decrees. At the same time its authority extended into every 
comer of the kingdom, and there were no reserved powers 
possessed by the local divisions of the country which might 
limit the jurisdiction of the central government. For all prac- 
tical purposes the voice of the Cabinet was the voice of democ- 
racy, while its hands were the hands of absolutism. 

The Liberal Cabinet. The outbreak of the war found a 
Liberal Cabinet in office supported by a majority in Parliament 
consisting of the Liberal party, which of itself did not con- 
stitute a majority of the whole, and of the Irish Nationalist 
and Labor parties. Without altering its Liberal composition, 
the Cabinet entered into a truce with the opposition Unionists, 
which resulted in the suspension of the customary practice of 
parliamentary interpellation and criticism, and enabled the 
Cabinet to put through Parliament a large number of emer- 
gency acts without the delays attendant upon discussion and 
debate. At the same time the Cabinet obtained the passage 
of a resolution by which the normal " parliamentary initiative," 
under which individual members presented their bills, was dis- 
pensed with in favor of the passage of legislation desired by 
the Cabinet. But though given a free hand, the Cabinet which 
had proved equal to the tasks of peace proved unequal to those 



DEMOCRATIC GOVERNMENTS yy 

of war. Dissatisfaction began to be expressed in and out of 
Parliament, and the Unionist leaders insisted that they could 
no longer refrain from criticism unless their party was rep- 
resented in the Cabinet. The Prime Minister acquiesced, and 
a new Coalition Cabinet was created on June 3, 191 5. 

The Coalition Cabinet. The new Cabinet represented the 
abandonment of the traditional system of party government 
which had grown up in Great Britain after the revolution of 
1688, and which had become by custom a part of the British 
Constitution. Its twenty-two members included the chief polit- 
ical leaders of the different political parties ; so that the oppo- 
sition benches were henceforth silent, except for the voices 
of isolated groups of radicals. At the same time the law, or 
rather the convention, of the Constitution that newly-appointed 
ministers must resign their seats and stand for re-election was 
set aside, in order to avoid the inconvenience of holding elec- 
tions at so critical a time. But the Coalition Cabinet, while 
it proved to be more efficient than its predecessor, failed to 
give satisfaction, and demands were heard for the creation of 
a smaller governing body which, freed from the responsibility 
of directing the departments, could give its entire time to the 
conduct of the war. The result was that in November, 191 5j 
there was formed within the Cabinet a smaller body of six 
members, known as the " War Committee," which, with the 
assistance of a military, naval, and diplomatic staff, was given 
general direction of war measures, subject to a limited con- 
trol on the part of the Cabinet as a whole. Thus organized, 
the Coalition Cabinet maintained the confidence of Parliament 
for more than a year, and succeeded in weathering the critical 
period which accompanied the introduction of conscription. 
But again criticism, especially from the influential press, called 
for a reorganization of the administration, and in the presence 
of a proposal from the Minister of Munitions, Mr. Lloyd 
George, tliat a Council of Wax be formed from which the 
Prime Minister was to be exbhxded, Mr. Asqiiith and the en- 



78 POLITICAL SYSTEMS IN TRANSITION 

tire Cabinet resigned, and on Dec. lo, 1916, a new " War 
Cabinet " under the leadership of Mr. Lloyd George took its 
place.^ 

The War Cabinet. The War Cabinet was a constitutional 
innovation even more striking than the Coalition Cabinet. In 
the first place it was not the result of a parliamentary vote, but 
of an agreement between the leaders of the parties, entered 
into at the dictation of the Minister of Munitions in the role 
of the man most essential to the Government. Further, the 
War Cabinet not only abandoned the relationship of responsi- 
bility to the larger body of cabinet officers, which had been 
assumed by the War Committee, and became directly responsi- 
ble to Parliament, but it at the same time cut itself loose en- 
tirely from the active direction of the administration and exer- 
cised merely a supervisory control over the numerous ministerial 
departments. Though nominally responsible to Parliament, the 
War Cabinet did not undertake the task of party leadership 
in the House. Its members attended the sessions of Parlia- 
ment only on special occasions, and left Parliament to discuss 
as it pleased matters over which it had no control. It neverthe- 
less remained in sufficiently close touch with Parliament to be 
able to allay distrust should it arise. The ministers in charge 
of the administrative departments continued to represent a 
coalition of the parties, but their relations to the Cabinet be- 
came somewhat uncertain. No provision was made for their 
meeting in common or for the coordination of their functions ; 
and as they had been increased to the number of eighty-eight 
there were frequent conflicts of authority among them which 
the W^ar Cabinet was called upon to adjust. A further diffi- 
culty lay in the subordination of the more important heads of 
departments, now reduced from their former cabinet rank, the 
Secretaries of War and of Foreign Affairs, and the First Lord 
of the Admiralty, to the smaller cabinet group who were rather 

1 For further details see a monograph entitled, " British War Admin- 
istration," by Professor John A. Fairlie, published by the Carnegie 
Endowment for International Peace. 



DEMOCRATIC GOVERNMENTS 79 

directors of policy than skilled administrators. In the mean- 
time the old Liberal leaders, completely overlooked in the choice 
of the War Cabinet and of the more important ministerial 
posts, revived the Opposition in the House of Commons, and 
the paradoxical situation was at times brought about in which 
Mr. Asquith from the Opposition bench came to the rescue 
of the Government which had ousted him and forestalled what 
might have been votes of lack of confidence. 

Attitude of public opinion towards the War Cabinet. 
Public opinion, as represented in the leading organs of the 
press, on the whole acclaimed the new Cabinet and acquiesced 
in the departure from constitutional traditions in the hope that 
the war might be more effectively prosecuted as a result of 
the change. The Conservative press naturally looked with 
favor upon a Cabinet in which its party was represented by 
three members out of five at a time when it possessed but a 
minority in the House of Commons. The NorthcHff press saw 
in the new Cabinet the promise of that unity of action which 
it had long urged as essential to the winning of the war. On 
the other hand several of the leading Liberal papers condemned 
both the surrender of Mr. Lloyd George to the Con-servative 
party and the inherent weaknesses of his " new kind of govern- 
ment." " How long," commented " The Nation," " Parliament 
will tolerate so irregular and futile a separation of dignity from 
responsibility, and from the elaborate and detailed functions 
of modern government, remains to be seen." ^ " The Execu- 
tive Ministers," it repeated the following week, " are not Mr. 
George's co-equal colleagues, but subordinates who may be 
sum-moned to discussions, as the chief clerks in a large firm 
may be summoned to consult, one by one, with the partners. 
It is stupefying that the vital decisions, which will end the 
war or prolong it indefinitely, will be taken by these four or 
five men alone, and that in their decisions the three Ministers 
who are nominally responsible to Parliament for foreign policy, 
the Army, and the Navy, will have only a consultative voice." 

1 Issue of December 16, 1916. 



8o POLITICAL SYSTEMS IN TRANSITION 

By contrast an able British publicist, after stating that " it can- 
not be disguised that democracy has been a failure in war since 
the beginning of history," asserted that Great Britain needed 
the one-man executive provided for by the American Constitu- 
tion. " A small inner Cabinet, divorced from administration, 
is a great improvement compared with an Executive of twenty- 
three tired men who have to look after administrative, legisla- 
tive, and party-political matters as well, and who in addition 
have to waste their time in Parliament . . . Unless Mr. Lloyd 
George is able to dominate his colleagues as Chatham did in his 
time, unless Great Britain possesses virtually a one-man Execu- 
tive, he should seek for power which will make the Prime 
Minister solely responsible by law. ... It is better that war 
should destroy the traditional disorganization of democracy 
than that the traditional disorganization of democratic govern- 
ment should destroy democracy itself and the British race." ^ 
Extension of the legal duration of Parliament. Turning 
from the Cabinet to Parliament itself, of which the Cabinet is 
but a select committee, it is instructive to note, in comparison 
with the American system of constitutionally determined tenure 
of office, how easy it was under the British system for Parlia- 
ment to extend its official life by a simple legislative act. By 
the Parliament Act of 191 1 the former maximum term of 
seven years was reduced to five, and considering the circum- 
stances attending the passage of the act it may be said to have 
become at once a part of the British Constitution. But the very 
first operation of the new rule in respect to parliamentary elec- 
tions came at a time when elections could not be held without 
seriously distracting the Government from the conduct of the 
war. Had Great Britain possessed a constitution as rigid as 
that of the United States she would have been obliged to hold 
her elections, as we did in 1918, in spite of any inconvenience. 
But possessing an elastic constitution, parts of which are no 
more tlian parliamentary statutes to which a special authority 

1 Politicus, " Many-Headed Dewocracies and the War," " Foitnightly 
Review," May, 1918. 



DEMOCRATIC GOVERNMENTS 8i 

is attached by reason of their intrinsic importance/ Great 
Britain was able to meet the emergency without hesitation or 
discussion. Successive laws were passed by Parliament extend- 
ing its own legal existence, and the elections which should have 
been held in 1916 were actually not held until 1918, when the 
war had been won and the attention of the party leaders could 
be given to domestic politics. 

Parliament during the war. We have seen that the crea- 
tion of a Coalition Cabinet suspended for a time the organized 
Opposition which is a characteristic feature of Parliament. 
With the creation of the War Cabinet the Opposition was re- 
vived in the persons of the Liberal leaders who had been over- 
looked in the choice of the new government. Their hands 
were, however, tied by the fact that in every instance they 
were obliged to measure the value of their criticism against 
the danger of disorganizing the Government at a time when 
it was more important to give even an inefficient government a 
free hand than to risk the delays incident to change. Parlia- 
ment continued to discuss war policies, but with the separa- 
tion of the Cabinet from active administrative duties, and 
with the appointment of a large number of ministers who did 
not have seats in Parliament, there was frequently no respon- 
sible minister present to reply to the inquiries of Parliament 
into the measures taken by the Government. As Mr. Bonar 
Law expressed it, the new ministers were going to their of- 
fices " to do work," and not to " defend " what they did in 
the House of Commons ; upon which " The Nation " commented 
to the effect that the whole mechanism of government was now 
divorced from the representative system. " The fiction," it 
said, " that the majority of the House has a tendency and a 
policy is abandoned. The minister is now either an outsider, 
or else a Member who is not expected to attend its sittings. 
He works exclusively in his Department, surrounded by 
bureaucrats, and he is in effect an untrained bureaucrat him- 
self. What survives of the powers of the House is merely a 

1 See above, p. 27. 



82 POLITICAL SYSTEMS IN TRANSITION 

recognition of its right to hear a * defense ' of what is done. 
The defense, however, no longer involves any personal con- 
tact of the Minister with the House." ^ In a number of in- 
stances even the members of the ministry who had seats in 
Parliament were absent from the sittings, and under-secretaries 
were the only persons from whom Parliament could obtain a 
" vicarious " defense of what was being done. Mr. Bonar Law 
acted as a sort of " sentry, set on guard to protect the inner 
Cabal from Parliamentary snipers," and without necessarily 
attending the sittings of the War Cabinet and having only a 
nominal responsibility for what it did, he was delegated to 
undertake the defense of its decisions in the House. " It is 
clear," said " The Nation," " that the NorthcHff -George revolu- 
tion means nothing less than the suspension of Parliamentary 
government itself." 

The elections of 1918. The elections to Parliament held in 
December, 1918, are of particular interest as illustrating the 
political dangers incident to the elastic character of the Brit- 
ish Constitution in respect to the duration of Parliament. If 
the United States had been passing through as serious a crisis 
in 1918 as Great Britain was passing through in 1916, it is pos- 
sible that we might have envied the British their ability to 
postpone elections without the formality attending an amend- 
ment to the United States Constitution ; but at the same time the 
fixed date for elections in the United States made it impossible 
for the party in power to time the elections so as to secure the 
greatest political advantage. As soon as the armistice had 
been signed the Coalition leaders made preparations for a 
general election, to be held on December 14th, on the ground 
not only that Parliament had outlived its legal life, but that in 
view of the coming peace conference it was necessary for the 
British spokesmen to know that they had behind them a House 
of Commons which was the latest expression of the popular 
will. The old-line Liberal and Labor parties both objected on 
the ground that there was no necessity for an election, since 

1 Issue of December 23, 1916. 



DEMOCRATIC GOVERNMENTS 83 

the people would support the War Cabinet in the making of 
peace with the same confidence with which they supported 
it during the war. Moreover, many of the three million sol- 
diers on foreign soil either would be unable to vote or would 
vote in tlie dark. There was, it was said, no clear issue, but 
rather a call upon the people to support the Government which 
had " won the war," and which could be trusted to " make 
Germany pay " and to carry into effect measures of reconstruc- 
tion in the form of better housing and better social conditions. 
It was freely charged that the Prime Minister was seeking to 
secure himself in power for a longer term by calling for a vote 
of personal confidence at a time when the public mind was more 
intent upon securing the fruits of victory than upon weighing 
carefully the policies which the Government would pursue in 
the days of peace to come. A striking feature of the elec- 
tions was the small percentage of registered voters who ap- 
peared at the polls. 

Call for reform. The elections were marked by a triumph 
for the Coalition government, but a triumph secured under 
conditions which directed serious attention to the electoral re- 
form known as proportional representation. For the first time 
in British political history a formal government list of candi- 
dates was put forth and the full pressure of the Coalition 
leaders brought to bear against their opponents. Candidates 
stood for the Coalition without abandoning their party affilia- 
tions. Loyalty to the Coalition constituted a government 
'* coupon "of credentials, and Tories who supported the Coali- 
tion were " couponed " into the seats of the Anti-Coalition or 
" Asquith " Liberals ; while in other instances Coalition 
Liberals were elected by Tory voters. The result of the cross- 
ing of the issue of loyalty to the Government with the old 
party policies, and of the three- and four-cornered contests due 
to the presence of the old-line Liberal and the Labor candi- 
dates, was that the Coalition obtained 87 per cent, of the candi- 
dates with only 56 per cent, of the votes. The Unionists ob- 
tained some 380 members from about five million votes, while 



84 POLITICAL SYSTEMS IN TRANSITION 

two million and a quarter Labor votes obtained less than 60 
members, and Liberalism with a million and a quarter votes ob- 
tained but 26 members. 

In consequence of these inequalities between party repre- 
sentation and voting strength there has been a renewed de- 
mand for a reform of the electoral system. The " Speakers' 
Conference," in presenting the report which was made the 
basis of the new Franchise Act of 1918,^ recommended that 
the old single member constituencies should be merged into 
larger constituencies which should return a number of mem- 
bers in accordance with a plan of proportional representation. 
The House of Commons rejected the proposal. The House 
of Lords, however, strongly favored it, and, while failing to 
secure its incorporation into the bill, succeeded in having a 
clause adopted providing for the appointment of commissioners 
to prepare a plan of proportional representation for the elec- 
tion of 100 member's in certain town and county areas combined 
into constituencies returning from three to seven members. 
At the same time proportional representation was adopted in 
respect to university constituencies returning two or more 
members. The support of the proposal by the conservative 
membership of the House of Lords and its defeat by the 
Conservatives in the House of Commons shows a division of 
opinion either as to the effects of the measure in protecting 
minorities, or as to the possibility of the Conservative party 
being in the minority in the near future. The program of the 
Manchester Liberal Federation, published on I\Iay 26, 1919, 
calls for a House of Commons to be elected by proportional 
representation for a term not exceeding five years and not to 
be dissolved before the expiration of that period except after 
a special resolution passed by the House itself. But on the 
other hand it is urged by even so progressive a paper as the 
" New Statesman " ^ that proportional representation can only 
be introduced at the sacrifice of the essentially democratic sys- 

1 See below, p. 93. 

2 April 19, 1919. 



DEMOCRATIC GOVERNMENTS 85 

tem of by-elections, which, by indicating the changes of pubHc 
opinion, is of greater value than a more accurate reflection of 
the state of mind of the electors at a given moment. 

Proposals of reconstruction. What is to be the future of 
parliamentary government in Great Britain? On all sides it is 
agreed that the dictatorial power of the War Cabinet must be 
surrendered to Parliament, but there is considerable difference 
of opinion as to the relations henceforth to be established be- 
tween the Cabinet and Parliament. A Machinery-of-Govern- 
ment Committee of the Ministry of Reconstruction has pre- 
sented an important report in which it describes the essential 
functions of the Cabinet as consisting of the determination of 
the policies to be presented to Parliament, the supreme control 
of the national executive in accordance with the policy pre- 
scribed by Parliament, and the continuous coordination and 
delimitation of the activities of the several departments of 
state. It advocates that the Cabinet should be reduced to a 
smaller body of ten or twelve members in place of the twenty 
or more members of 1914. At the same time the number of 
the ministerial departments is to be reduced according to a 
scheme which distributes the business of the Government into 
ten main divisions, with occasional subdivisions, bearing a gen- 
eral resemblance to the ten executive departments in the Na- 
tional Government of the United States. The Committee, 
moreover, recommends that the reality of parliamentary control 
be restored over the country's finances, and that parliamentary 
committees should be constituted to watch over the activities 
of the departments. 

Further suggestions from various sources are of less practi- 
cal value, such as the proposal that the solidarity of the Cabi- 
net should be broken up by making individual ministers re- 
sponsible to Parliament and removable by a vote of want of 
confidence. Comparison is also made with the French com- 
mittee system, which, in spite of the inconveniences attached 
to its frequent changes of membership, does in fact make of 
the Chamber of Deputies a working body which can not only 



86 POLITICAL SYSTEMS IN TRANSITION 

criticise the work of the administrative departments but con- 
tribute valuable constructive advice to the Government. It is a 
frequent comment of American writers that the unified system 
of cabinet government in Great Britain possesses singular ad- 
vantages in point of efficiency over the lack of coordination and 
the duplication of functions exhibited in the American Federal 
Government. We shall consider this question in detail later, 
but it may be observed here that the Federal Congress has never 
been reduced to the humiliating status now held by the British 
Parliament. If Parliament is to be restored to its former posi- 
tion of dignity, it must be made more than a critical onlooker 
in legislation. The mere power to overturn cabinets must 
ultimately, with the break-up of the two-party system, render 
the British Constitution dangerously unstable, unless it be ac- 
companied by the sense of responsibility which results from a 
knowledge of the practical alternatives to the policies criticised. 
Substantive war legislation. Turning from the changes in 
the organization of the British Government brought about by 
the war to the substantive legislation adopted to meet the suc- 
cessive emergencies with which the country was faced, we may 
distinguish between legislation of a positive character, having 
in view the control of all the resources of the country for the 
more effective prosecution of the war, and legislation of a 
negative or prohibitory character, encroaching upon constitu- 
tional rights hitherto immune from control. In both instances 
traditional principles of British Government were set aside and 
new rules introduced to which, but for the emergency which 
called them forth, the term " revolutionary " could fitly be ap- 
plied. The legislation of a positive character adopted during 
the course of the war leads us into economic and social fields 
of study which are outside the scope of this volume ; but at the 
same time such legislation bears sufficiently upon the prob- 
lem of government to warrant consideration of it in so far as 
it called for the creation of new political agencies of control, or 
altered the fundamental relations previously existing between 
the state and the industrial life of the citizen body. 



DEMOCRATIC GOVERNMENTS 87 

Control over industrial life. It was but natural that a 
country which, like Great Britain, had pursued a traditional 
policy of laisses faire in relation to production and distribu- 
tion, should be led at the outset to adopt voluntary methods in 
the readjustment of its industrial system to the demands of 
war. If the production of the necessities of war could be in- 
creased and distribution facilitated by the mere appeal to 
patriotism, there would be no need to resort to governmental 
machinery which would have to be specially created for the 
occasion. Moreover, the full measure of the demands which 
the war was to make upon the country dawned but slowly 
upon the Government and the public alike. In consequence it 
is possible to mark off a series of successive stages in the in- 
creasing control of the British Government over production, dis- 
tribution, and exchange.^ It is interesting to observe that the 
dates of these stages correspond approximately to the political 
stages which have been referred to above. From a Liberal 
Cabinet working under a party truce, the Government passed 
to a Coalition Cabinet in June, 191 5, and again to a smaller 
War Cabinet in December, 191 6. In like manner the control 
of the government over industrial life proceeded from tenta- 
tive measures of control over the essentials of national exist- 
ence to a complete mobilization of industrial resources which 
could be brought to bear upon the production of military and 
naval supplies, and finally to more stringent measures extend- 
ing to industries indirectly connected with the war and to the 
production and consumption of food supplies. The experi- 
ence of Great Britain in these matters proved of great value to 
the United States when faced with similar problems ; and it is 
only when read in the light of the lessons learnt from Great 
Britain that the rapidity with which the United States adjusted 
its industrial life to the demands of the war can be properly 
understood. 

1 The subject is treated in detail in a volume by Professor H. L. 
Gray, " War Time Control of Industry : the Experience of England," 
which has been freely drawn upon in the three following paragraphs. 



88 POLITICAL SYSTEMS IN TRANSITION 

Government control of the railways. The first important 
step taken by the Government on the outbreak of the war was 
the assumption of control over the railway system. On August 
5th the Government placed the administration of the railways 
in the hands of a committee of railway managers 
with the President of the Board of Trade as chairman. In 
accordance with a previous agreement the compensation to be 
made to the owners was to be fixed by arbitration, and as a 
result of this action the Government undertook to pay to the 
companies, together with the new receipts, the sum by which 
the new receipts of the railways while under government con- 
trol should fall short of the net receipts for the corresponding 
period of 1913. The railways were thus guaranteed the 
profits which they had been obtaining in the period immediately 
preceding the war. 

Munitions of v^ar. The next important problem to engage 
the attention of the Government was the necessity of increasing 
the production of military and naval supplies. The Defense 
of the Realm Act had authorized the military authorities to 
take over the output of any factory or workshop in which arms, 
ammunition, or warlike stores were manufactured, and a later 
amendment conferred the additional authority to take over the 
output of " any factory or workshop, or any plant thereof," and 
to require the factory to do work in accordance with directions, 
which might go so far as to restrict the work done in one fac- 
tory in order to increase the work in another. A Ministry 
of Munitions was created in June, 1915, and a Munitions of 
War Act was passed which was a final and decisive step in the 
control of the state over industry. Net profits were fixed, 
which might exceed by no more than one-fifth the net profit 
before the outbreak of the war. By later regulations the prices 
of iron, steel and copper were fixed, and priority regulations 
were adopted securing to the various industries their essential 
•supplies in the order of war-time importance. The control of 
the production of coal proved difficult chiefly because of the 
problem of meeting the demands of the Miners' Federation, 



DEMOCRATIC GOVERNMENTS 89 

which not only insisted upon increased wages to meet the in- 
creased cost of Hving, but refused to come under the control 
exercised by the Government in other industries and threatened 
industrial revolt when attempt was made to put pressure upon 
them. In the presence of an impending strike in November, 
1916, the Government took possession of the mines in South 
Wales, and on March i, 1917, the remaining coal mines of the 
country were taken directly under the control of the state. A 
new department was created to administer the mines, and a 
Controller of Coal Mines was appointed. 

The Government and Labor. Intimately bound up with the 
problem of government control over the railways, munition 
plants, and coal mines, was the question of the adjustment of 
the conditions of labor. In the case of the railways, which were 
directly under government control, a " truce " was concluded 
with the two large unions, by which a scheme of conciliation 
worked out in 191 1 came into effect, subject to six weeks' notice 
to terminate. Readjustments of wage schedules took place at 
intervals, and strikes which had been threatened were post- 
poned accordingly. In August, 191 7, the Government was 
forced to apply the law declaring a strike illegal until resort 
had been had to the arbitration of the Minister of Labor. In 
the case of the munition factories which were not under direct 
government control, the Munitions of War Act of 191 5 provided 
for the compulsory arbitration of disputes and introduced a 
system which made it a condition of securing new employment 
that the worker should obtain from his last employer a " leav- 
mg certificate." ^ On one occasion a local union called a 
strike in violation of the provisions of the act, but the strike 
was repudiated by the central union, and the Government felt 
strong enough to arrest the leaders of the strike and thus 
brought it to a prompt end. In the case of the coal mines, as 
has been said above, the Miners' Federation refused to allow 

^ So bitter, however, was the opposition of the labor unions to these 
" leaving certificates " that provision was subsequently made for their* 
abolftion, whicli was accompli'slfed on October 15, 191 7. 



90 POLITICAL SYSTEMS IN TRANSITION 

the compulsory arbitration features of the Munitions of War 
Act to be extended to them, and threats of strikes were fre- 
quent until the Government assumed direct control.^ 

The Defense of the Realm Act. The war legislation of a 
negative or prohibitory character is of great political interest 
because of its encroachment upon the fundamental personal 
rights of British citizenship. It had for its general object the 
prevention of interference with the Government in the conduct 
of the war and the enforced cessation of acts which, whether 
done with deliberate intent or not, might give aid to the enemy. 
On November 27, 1914, a Defense of the Realm Consolidation 
Act was passed, combining and amending two previous acts 
and conferring upon the King in Council the power to " issue 
regulations for securing the public safety and the defense of 
the realm." These regulations might authorize the trial by 
court martial, or in the case of minor offenses by courts of 
summary jurisdiction, and the punishment of persons commit- 
ting offenses against the regulations. Special reference was 
made to regulations designed to prevent persons from com- 
municating with the enemy or obtaining information for that 
purpose, to secure the safety of the national forces and ships 
and means of communication, to prevent the spread of false 
reports or reports likely to cause disaffection to the Government, 
and otherwise to prevent assistance being given to the enemy 
or the successful prosecution of the war being endangered. 
This act, popularly known as DORA, from the initial letters of 
its title, was supplemented on the following day by the Regula- 
tions authorized, which went into details with regard to the ob- 
jects sought by the act. 

Scope of the Act. The Defense of the Realm Act with its 
Regulations struck down with a single blow the personal liber- 
ties and rights of property which have been held as the most 
sacred tradition of the British Constitution. In the first place 

1 Further details may be obtained from a recent study of "British 
Labor Conditions and Legislation during the War," by M. B. Hammond, 
published by the Carnegie Endowment for International Peace. 



DEMOCRATIC GOVERNMENTS 91 

it deprived the citizen of his right of personal liberty, in author- 
izing any person acting under the military and naval authorities 
to arrest without warrant any person " whose behavior is of 
such a nature as to give reasonable grounds for suspecting " 
that he had acted or was about to act in a manner prejudicial 
to the public safety or the defense of the realm. Moreover, the 
military authorities could, upon mere suspicion and without 
proof of any kind, require any private citizen to reside where 
they pleased and to report himself to them whenever they 
thought fit. They could stop any citizen as he walked the 
streets and compel him to answer questions, even though by 
so doing he might incriminate himself. In the second place 
freedom of speech and of the press were both brought under 
the control of the Government by the regulations designed to 
prevent the spread of reports likely to cause disaffection. Cen- 
sorship of the press had not existed in Great Britain since 1694 
when the licencing act of 1662 was repealed; and the freedom 
of the press meant of course only the absence of censorship, for 
there had always been restrictions upon the press imposed by 
the law of libel, of sedition, and of treason.^ By the Regula- 
tions the military authorities had it in their power to " punish 
with penal servitude for life any journalist who speculates as 
to the plan of campaign of the British or French forces, and 
with six months' imprisonment if he criticises the dietary or ac- 
commodation of the new recruits." ^ So sweeping were the 
terms of the law that every newspaper editor practically acted 
at his peril in publishing any information whatever, and no dis- 
cussion of " supposed plans " by military experts was permis- 
sible. In the third place the Act and the Regulations author- 
ized searches and seizures without warrant on the mere ground 
that the military authorities had " reason to suspect " that any 
house or other premises were being used " for any purpose or 
in any way prejudicial to the public safety or the defense of the 
Realm," or that anything found therein was being used for 

1 See above, p. 26. 

2Baty and Morgan, "War: It? Conduct and Legal Results," p. 112, 



92 POLITICAL SYSTEMS IN TRANSITION 

the said purpose, including newspapers and type or printing 
plant where there had been a contravention of the regulations 
relating to the press. No longer was the Englishman's home 
his castle, no longer was he free to criticise his government with 
even the best of intentions, no longer was he free to come and 
go as he pleased. 

Military law extended to civilians. The above restrictions 
were stringent enough even considering the extraordinary 
emergency that called them forth. But what was perhaps 
severest of all was the extension of military law to the entire 
citizen body. The Act of November t.'j, 1914, in authorizing 
the Regulations abolished trial by jury in favor of courts- 
martial and courts of summary jurisdiction and denied the 
writ of habeas corpus. At the time of the passage of the act 
the question was raised by Viscount Bryce in the House of 
Lords " whether the British subject is not entitled, as he al- 
ways has been in times past, to have the constitutional pro- 
tection of being tried in a civil court when there is a civil court 
there to try him." In past times military law had always been 
limited to the armed forces of the state ; it was here extended 
so as to treat every citizen "as if he were a person subject to 
the military and had on active service committed " the offense. 
On INIarch 16, 1915, an amendment to the act was adopted 
giving the accused the right to demand a jury trial, but no 
provision was made to secure his release from custody, nor 
was he given on acquittal any right of action for malicious 
prosecution or for false imprisonment. These provisions may 
compare unfavorably with the less drastic action taken by the 
Congress of the United States when confronted with a similar 
problem ; but it must be remembered that the situation in Great 
Britain was far more critical in respect to espionage than in 
our own country. 

Problems of reconstruction. It is impossible within the 
limits of these pages to deal at further length with the steps 
taken by Great Britain to adapt her political institutio"ns and 
industrial life to the demands of the war, valuable as are tlie 



DEMOCRATIC GOVERNMENTS 93 

comparisons which these steps offer with those taken by the 
United States under similar conditions. We must now turn 
to a brief survey of the problems of reconstruction faced by 
Great Britain and mark out some of the probable lines of de- 
velopment. What new democratic forces have been released 
by the war? To what extent are they organized for effec- 
tive action? What is their program of national and local re- 
form ? Can this program be fitted into the existing political and 
industrial organization, or must radical changes take place 
before it can be introduced? 

The extension of suffrage. The political basis for a new 
era of reconstruction was laid on February 6, 1918, when the 
Representation of the People Act was adopted, removing the 
last restrictions of sex and property from British suffrage. A 
man now votes because he is a citizen, not because he possesses 
a certain amount of property, however limited that amount may 
be. This principle would in itself have logically demanded the 
enfranchisement of women, had not the services they were 
rendering in the various fields of war work also made it im- 
possible for Parliament to deny them an equality of political 
rights. The restriction that women must be over thirty years 
of age is an anomaly explained by the fact that the women 
largely outnumber the men, but it is so inconsistent as a logical 
proposition that its repeal, together with the limited property 
qualification imposed upon women, cannot but be a matter of 
time. While thus extending the suffrage the act at the same 
time removes a number of political inequalities which existed 
under the old system. Plural voting is, however, in part an 
exception, and it is still possible for a man to vote in a con- 
stituency where he occupies premises for business purposes as 
well as in the constituency where he resides, and to vote in the 
double capacity of university graduate and citizen. A redis- 
tribution of seats was provided for, with a resulting gain to 
the cities whose population had increased out of all proportion 
to that of the counties. With the limitation of plural voting 
to two constituencies the old practice of polling on different 



94 POLITICAL SYSTEMS IN TRANSITION 

days in different localities was abolished in favor of holding 
all elections on a single day. 

The new Labor Party. The second striking feature of the 
political heritage of the war is the appearance of a stronger 
and better organized Labor party. We cannot discuss here the 
possible effect which this third party, now become formidable, 
may have upon the cabinet system of government, which has 
been generally regarded as a stable and effective form of gov- 
ernment only when Parliament was composed of two more 
or less evenly balanced political parties. The principles of the 
Labor party are, however, of great importance in view of its 
increasing strength. Prior to the war the Labor members in 
Parliament, having won 42 seats in the general elections of 
1 910, formed a separate and independent group, but " they 
were not a party, in the accepted sense of the word, and some 
of tliem had not shaken off their allegiance to the historic 
parties." ^ The Labor organization was a federation of local 
and national societies rather than a " national popular party." 
The new Labor party, however, makes its appeal to a wider 
circle of voters not connected with trade union organizations 
but in sympathy with the ideals of the party. In the elections 
of 1918, as a result of the prominence given to the issues bear- 
ing upon the terms of peace, the Labor party, while gaining 
sixty seats, lost from Parliament three of its most important 
leaders, including Mr. Henderson, its chief organizer. Its 
parliamentary representation, moreover, was composed, with 
but one exception, of trade unionist officials, the realization of 
the ideal of a national popular party appealing to brain workers 
and hand workers alike being thus postponed. On the basis of 
proportional representation the party's success would have been 
considerately greater, since it polled over two and a quarter 
million votes. 

Its reconstruction program. The program of the Labor 
party is best set forth in a Draft Report on Reconstruction 

1 Arthur Henderson, " The Aims of Labor," p. 17, where a sketch 
of the growth of the Labor Party may be found. 



DEMOCRATIC GOVERNMENTS 95 

prepared by a sub-committee of the party executive and sub- 
mitted to the annual conference of the party for further dis- 
cussion.^ The report describes in detail the " four pillars of the 
house " which Labor proposes to erect. The first of these is 
the establishment of a " national minimum," that is, a general 
standard of living for all the workers, which shall insure to 
them " all the requisites of a healthy life and worthy citizen- 
ship." As part of this policy the program imposes upon the 
Government the obligation to find suitable employment in pro- 
ductive work for all men and women, and advocates the adop- 
tion of a system of social insurance against unemployment. 
The second " pillar " is a more radical proposal in the form of 
a demand for the democratic control of industry. The Labor 
party not only calls for " effective personal freedom " as a first 
condition of democracy, as well as complete political rights in 
the form of an even more liberal suffrage law and the abolition 
of the privileged House of Lords, but calls for " democracy in 
industry " as well. It demands, therefore, the progressive 
elimination of the " private capitalist " and the introduction of 
a " scientific reorganization of the nation's industry ... on the 
basis of the common ownership of the means of production." 
The proceeds of industry are to be shared " among all who 
participate in any capacity and only among these." In the 
case of railways, mines, and electrical power plants, the pro- 
gram calls for immediate nationalization ; and the existing con- 
trol of the Government over the importation of wheat and 
other commodities and the centralization of the purchase of 
raw materials is to be continued. 

The third and fourth " pillars " consist in new schemes of 
taxation and in plans for the use of the surplus wealth of 
the country for the common good. The system of taxation 
must not encroach upon the prescribed national minimum stan- 
dard of life, nor must it involve a protective tariff, nor a tax- 
ation of the necessities of life, nor indirect taxes interfering 
with production or commerce. Rather it must include the 

1 " The Aims of Labor," Appendix II. 



96 POLITICAL SYSTEMS IN TRANSITION 

direct taxation of incomes above the necessary cost of family 
maintenance, a levy on capital to pay off the national debt, 
taxes on the unearned increment of land, and death duties 
(inheritance taxes) based upon a maximum amount which a 
person should be able to leave by way of provision for his 
family. At the same time the surplus wealth of the nation, ob- 
tained from the nationalization of mines and of the instruments 
of production and from the taxation of excess profits, is to be 
distributed in the form of pensions and of better educational 
facilities for all. As can readily be seen, the Labor party thus 
takes common ground with the Socialists on many points, and 
without using the name or adopting the orthodox " class war- 
fare " principles of Socialism, it looks for the support of the 
moderate wing of the Socialist group. Considering the 
strength of the party and the possibility that within the coming 
decade it may obtain a majority in Parliament and come to con- 
trol the Government, Americans cannot but view with interest 
its success in winning popular support outside of the ranks of 
organized labor.^ 

Program of the Ministry of Reconstruction. Early in the 
war the British Government realized that steps should be 
taken to provide for the period of reconstruction after the war. 
The Coalition Cabinet entrusted the study of reconstruction 
problems to a small Secretariat attached to a committee of the 
Cabinet. Sub-committees of the Cabinet committee were 
formed to deal with the following questions : agricultural 
policy, demobilization of the army, acquisition of powers, coal 

1 It must be noted, however, that the program of the Labor party 
has not received the support of a large number of influential persons 
in the labor movement. Many such, indeed, dissent vigorously from 
the " policy of the Fabian Society and of Mr. Sidney Webb " which 
it embodies, and consider that the program, though " eminently prac- 
tical in its proposals," is nevertheless " vitiated by the fact that it 
turns for help always to the State, and ignores or underestimates the 
vital forces of economic organization which exist and act, in the main, 
independently of the State." G. H, D. Cole, in the " Dial," November 
30, 1918. 



DEMOCRATIC GOVERNMENTS 97 

conservation, aliens, forestry, relations between employers and 
employed, and women's employment. As the war became more 
and more prolonged and the disturbance of the normal condi- 
tions of industrial and social life became greater and greater, 
making it clear that reconstruction must mean something much 
more constructive than a mere return to pre-war conditions, the 
War Cabinet created in March, 191 7, a new committee under 
the chairmanship of the Prime Minister, composed of mem- 
bers of Parliament, of representatives of labor, of men of busi- 
ness, and of experienced social workers. New sub-commit- 
tees were appointed to deal with the following questions : adult 
education, civil war-workers demobilization, acquisition of land, 
machinery of government, local government, and a ministry of 
health ; while the problems of housing, unemployment, physi- 
cal training, juvenile employment and apprenticeship, the sup- 
ply of raw materials, and shipping, were likewise considered by 
the committees. 

A further step, however, was yet to be taken by the Govern- 
ment, and in July, 191 7, a Ministry of Reconstruction was 
created. The reason for this step was that the existing re- 
construction committee had no responsible connection with 
Parliament except through the Prime Minister whose atten- 
tion could not be given to its work, and at the same time had 
no effective contact with the ministers responsible for the great 
departments of the administration. The functions of the new 
minister were " to consider and advise upon the problems which 
may arise out of the present war and may have to be dealt 
with upon its termination, and for the purposes aforesaid to 
institute and conduct such enquiries, prepare such schemes, 
and make such recommendations as he thinks fit." The minis- 
ter was given certain concurrent powers with the other depart- 
ments of the Government which were conducting inquiries in 
their own fields, and was called upon to assist these departments 
with such information as might be useful to them. The new 
department divided itself into branches dealing with commerce 
and production, with finance, shipping, and common services, 



98 POLITICAL SYSTEMS IN TRANSITION 

with labor and industrial reorganization, with rural develop- 
ment, with the machinery of government, central and local, 
with health and education, and with housing and internal trans- 
port. An advisory council was appointed by the minister, 
representative of the leading interests concerned in recon- 
struction, and the membership of its several sub-sections was 
so arranged as to include persons representing in each case the 
interest more directly concerned in the particular problem. A 
number of reports from the earlier sub-committees have already 
been published, such as the Report on the Machinery of Gov- 
ernment, referred to above, and the important Whitley Report, 
dealing with joint standing industrial councils as a means of 
securing a permanent improvement in the relations between 
employers and workmen.^ 

Value to the United States of political experiments in 
Great Britain. It has been felt necessary to discuss in some 
detail the changes brought about in British political institu- 
tions as a result of the new conditions created by the war, be- 
cause these changes must have a far-reaching effect upon the 
future government of Great Britain, and must in turn inevitably 
influence the course of development of democratic institutions 
in other countries. We have entered upon an age in which 
new ideas of political liberty are passed from nation to nation 
as formerly from county to county of the same state. To 
Americans, Great Britain is as it were a political laboratory 
in which experiments of the highest importance are being car- 
ried out, upon the success of which the introduction of similar 
methods in the United States will partly depend. As Russia 
is conducting hazardous, but none the less valuable, tests of 
the fundamental conceptions of democracy, of the value and 

1 Further details of the organization and functions of the Govern- 
ment's committees on reconstruction may be found in "The Problems 
of Reconstruction," edited by L. Rogers, International Conciliation 
Bulletin No. 135. For a bibliography of the subject, see the "Select 
List of References on Economic Reconstruction," compiled by the 
Library of Congress, which includes the reports of the British Min- 
istry of Reconstruction. 



DEMOCRATIC GOVERNMENTS 99 

limitations of the rights of property, of legal equality in con- 
tradistinction to natural inequality, so Great Britain is for us a 
field in which some of the newer problems of democracy are 
being worked out along lines which seek to preserve the old 
traditions of political liberty, while extending the scope of 
liberty to include economic and social elements without which 
political liberty is an empty formula. Is industrial democracy 
a feasible solution for the conflict between labor and capital? 
Can a better distribution of national wealth be obtained with- 
out destroying the mainspring of individual initiative and re- 
moving the incentive to the development of ability? Is repre- 
sentative government to hold its own against the increasing 
demand for direct government of the people? Can majority 
rule be permitted to control the Constitution as well as the 
statutory law of lesser importance? These are but a few of 
the questions which both countries are facing, but which it 
seems probable that Great Britain will have to answer first. 
Good government is not a matter of abstract, a priori reasoning, 
but of experimental tests ; and we cannot but look with interest 
upon the solution which is given to these questions in a coun- 
try whose political traditions are so closely similar to our 
own. 

Changes in the Constitution of the British Empire. Not 
only were British domestic political institutions profoundly 
affected by the war, but the relations of the British Empire 
to its self-governing dominions underwent a fundamental 
change which is still in the process of development. When 
the war broke out Canada, Newfoundland, Australia, New 
Zealand and South Africa possessed an extent of autonomy 
which was, for the practical purposes of their domestic adminis- 
tration, equivalent to complete independence. Executive au- 
thority was exercised nominally by a Governor-General ap- 
pointed by the British Crown, but actually by a privy council 
or cabinet subject to the control of their respective parliaments. 
Legislation was completely within their control in all matters 
except the relations of the dominions with other countries, and 



loo POLITICAL SYSTEMS IN TRANSITION 

even in respect to treaties it was becoming the custom of the 
British Government to consult the wishes of the dominions be- 
fore concluding commercial treaties relating to them. But 
over the foreign policy of the British Empire the dominions had 
no control ; the mother country spoke for them in the councils 
of Europe and decided the issues of war and peace. Automati- 
cally the declaration of war by Great Britain against Germany 
made the dominions parties to the conflict. 

The response of the dominions to the call of the mother coun- 
try was immediate, and by August, 1918, over a million men 
had been contributed to the cause. At the same time the 
political leaders of the dominions made it clear that the domin- 
ions would never again suffer themselves to become involved in 
a war by the autocratic action of a Government in which they 
had no formal representation. Nor had the dominions in the 
first years of the war any voice in the military policies of the 
British Government. After the formation of the War Cabi- 
net in December, 1916, an invitation was sent out to the Govern- 
ments of the dominions and of India to be present at a special 
war conference to consider political and commercial matters 
of joint concern. The Conference sat side by side with the 
Imperial War Cabinet, at which the representatives of the 
dominions met the Prime Minister and his colleagues of the 
War Cabinet for the discussion in secret of the most important 
aspects of imperial policy. At the close of the Conference a 
resolution was adopted, on April 16, 1917, postponing until the 
close of the war " the readjustment of the constitutional re- 
lations of the component parts of the empire," but placing it 
on record, as the view of the Conference, that any such re- 
adjustment " while thoroughly preserving all existing powers 
of self-government and complete control of domestic affairs, 
should be based upon a full recognition of the Dominions as 
autonomous nations of an Imperial Commonwealth, and of 
India as an important portion of the same." 

Federalism versus autonomy. The resolution of the Im- 
perial Conference was generally interpreted as negativing the 



DEMOCRATIC GOVERNMENTS loi 

plan of a federal empire with an imperial parliament and an 
imperial executive. " The idea on which this resolution is 
based," said General Smuts in speaking on the resolution, " is 
rather that the empire will develop on the lines upon which 
it has developed hitherto : that there will be more freedom 
and equality in all its constituent parts; that they will con- 
tinue to legislate for themselves and continue to govern them- 
selves ; that whatever executive action has to be taken, even 
in common concerns, would have to be determined, as the last 
paragraph says, ' by the several governments ' of the em- 
pire." And again, on another occasion, " we are a system of 
nations. We are not a state, but a community of states and 
nations." On the other hand there is a group of federalists 
who urge that the only stable union that can be established be- 
tween the dominions and the mother country is one growing 
out of a central government to which the members of the 
federation would bear the clear and definite relations which 
can be laid down in a formal written Constitution. It can- 
not be hoped, they argue, that the informal conferences and 
consultations, such as those of 1917, will be adequate to bind 
together the distant parts of the empire once the old centrifugal 
forces are released by the termination of the war. An im- 
perial cabinet for the decision of questions of foreign policy and 
imperial defense would be inevitably driven to consider 
economic and political issues affecting foreign policy, and the 
demand for an imperial parliament would be the logical result. 
One federalist has sketched an elaborate plan in which provi- 
sion is made for an imperial legislature consisting of a senate 
representing the states of the union and a house of represen- 
tatives composed of representatives of the peoples of the union.^ 
This imperial parliament would have no control over exclusively 
British affairs, so that it would be necessary to create a separate 
local parliament for Great Britain similar to those now pos- 
sessed by the dominions. Mr. Lionel Curtis, a pioneer in the 
movement, has gone so far as to say that the issue is " whether 

^ Basil Worsfold, " The Empire on the Anvil." 



102 POLITICAL SYSTEMS IN TRANSITION 

the Dominions are to become independent republics, or whether 
this world-wide Commonwealth is destined to stand more 
closely united as the noblest of all political achievements." ^ 

The Imperial Commonwealth and a League of Nations. 
The reorganization of the British Empire is a problem the 
solution of which Americans must watch with the deepest in- 
terest. The analogies which the situation bears to that con- 
fronted by the Constitutional Convention in assembly at Phila- 
delphia in 1787 are perhaps not sufficiently close to make a 
comparison instructive, for the American union was between 
the colony-states themselves, while the Imperial Common- 
wealth must include within it a dominating mother country 
which has hitherto been in supreme control. Moreover the 
dominions and the mother country have separate political and 
commercial interests far more divergent than those of Mas- 
sachusetts and Virginia or of New York and Rhode Island in 
1787. Of greater present importance is the analogy between 
the federation of the British Empire and the proposed League 
of Nations. In an address at the Peace Conference, which 
has been widely quoted, General Smuts, as delegate from 
South Africa, spoke as follows : '' People talk about a league 
of nations and international government, but the only success- 
ful experiment in international government that has ever been 
made is the British Empire, founded on principles which ap- 
peal to the highest political ideals of mankind. . . , Our hope 
is that the basis may be so laid for the future that it may be- 
come an instrument for good, not only in the empire, but in 
the whole world." And again, in a draft " plan for a League 
of Nations " the same eminent statesman carried the compari- 
son into further details, showing that the ultimate authority 

1 " The Problem of the Commonwealth," p. vii. The recognition by 
the Covenant of the League of Nations of a right on the part of Can- 
ada, AustraHa, New Zealand, and South Africa, to be represented in the 
Assembly of the League, apart from the objection that it overweights 
the vote of Great Britain, is in keeping with the actual position held 
by the dominions in international relations. The representation of 
India is less justifiable. 



J 



DEMOCRATIC GOVERNMENTS 103 

of common action in both instances was a conference of the 
principle constituent states, at which a common policy was to 
be laid down, to be carried out by the individual governments 
of the states acting as the executive branch of the League. 
Further, the administration of the crown colonies and pro- 
tectorates of the British Empire bore, he said, a close resem- 
blance to the proposed guardianship of the League over the 
colonies and undeveloped territories formerly belonging to 
Germany. It is clear that for many years to come the prob- 
lem of federalism will be one of the most difificult problems 
of statesmanship, whether within the boundaries of the sepa- 
rate nations, such as Germany, Russia, and the British Empire, 
or as extending to the nations of the world at large in the 
endeavor to create an international union which shall consti- 
tute a bond of peaceful intercourse without infringing upon 
the local autonomy of its members.^ 

War Cabinets in France. The experience of France in 
adapting its political institutions to the demands of war bears 
less directly than that of Great Britain upon the problems con- 
fronting the United States, but it is of no less intrinsic interest 
to the student of government. The outstanding feature was 
the example set by France of the reality of its parliamentary 
government in time of war, and the possibility of securing an 
efficient fighting machine without denying the right of public 
opinion in and out of the chambers to criticise the Government 
and to overthrow cabinets as in times of peace. Upon the 
outbreak of the war the Viviani Cabinet decided to resign, 
not because of any direct opposition, but in order to permit the 
formation of a new cabinet comprising the best men of all the 
several Republican groups. The new Cabinet, of which Viviani 

'^ It would be interesting, but outside of the scope of the present vol- 
ume, to make further comparisons with the proposed solution of the 
Irish question, by conferring upon Ireland, Scotland, Wales, and Eng- 
land proper the status of local autonomy possessed by the dominions. 
At the moment of present writing the situation calls for separate treat- 
ment of Irish self-government. 



I04 POLITICAL SYSTEMS IN TRANSITION 

remained the head without portfolio, gave representation to 
the Socialist groups in the person of Jules Guesde. In Oc- 
tober, 191 5, the Viviani Cabinet resigned under criticism, 
chiefly from the pen of Clemenceau, of its policy in the Near 
East in not averting the entrance of Bulgaria into the war on 
the side of Germany. The succeeding Cabinet was a coali- 
tion one, and was equally a departure from fixed traditions as 
was the Coalition Cabinet in Great Britain. It was formed 
•under the premiership of Briand, and its larger number of 
twenty-four members permitted the inclusion of leaders of all 
the political groups, not excepting even the royalist and clerical 
party. Again Clemenceau attacked from the columns of 
'* L'Homme Enchaine," this time on the ground among others 
that the new Cabinet was too large and could not reach deci- 
sions quickly enough. In December, 19 16, the Briand Cabinet 
was reorganized so as to permit the formation of a small " War 
Council " of five members, similar to that formed in Great 
Britain under Lloyd George. In spite of this reorganization 
criticism continued, and in March, 1917, the Briand Cabinet re- 
signed and two Cabinets of brief tenure followed. That headed 
by Ribot was discredited by its failure to take action against 
German propagandists, and that headed by Painleve fell after 
being in office but two months, having failed to give representa- 
tion to the Socialist groups. In November, 1917, Clemenceau, 
who had been responsible for the fall of so many Cabinets, was 
called upon to form a new Cabinet of his own, and in spite of 
the opposition of the Unified Socialists he succeeded in holding 
the confidence of a majority of the Deputies. His administra- 
tion was marked by redoubled efforts in the prosecution of the 
war and by strong measures against the " defeatist " groups, 
who were suspected of working in the interest of Germany. 
The Clemenceau Cabinet remained in power until the close of 
the war, and after carrying through the negotiations of the 
peace treaty won a substantial victory in the elections of No- 
vember, 1919.'^ 

1 A summary of parliamentary changes during the war may be 
found in L, Duguit, " Manuel de Droit Constitutionnel," 3d ed., p. 20I. 



DEMOCRATIC GOVERNMENTS 105 

Relation of cabinet changes to the national morale. To 
the onlooker from abroad the rise and fall of French Cabinets 
might appear as a sign of weakness and offer good reason for 
doubting the efficiency of democratic institutions in the pres- 
ence of a great crisis. But it may well be questioned whether 
the responsiveness of a cabinet form of government to the de- 
mands of public opinion did not furnish the French people 
with an outlet for the tense feelings and strong convictions 
which the impending danger of defeat aroused, and to that 
extent steadied the nerves of the nation and made it feel that 
each change in the Government was but the enlistment in the 
service of the Government of those best fitted to meet the par- 
ticular emergency. Undoubtedly the large number of French 
political parties proved at times an embarrassment, since it be- 
came necessary to take into account party affiliation as well as 
executive ability in making up the membership of the several 
Coalition Cabinets. That was the price which France paid for 
the strong note of individualism in her political consciousness. 
But admitting the existence of numerous groups of divergent 
opinion in the state, it was far better that they should find rep- 
resentation in the administration than that for the sake of a 
greater unity of control a large part of the people should have 
been lacking in confidence in the purposes of the Government. 
In a war of successive victories the efficiency of a single com- 
mand might well have justified itself, as it did in Germany, 
against an unrepresented minority of the people. In a war of 
defeats and deadlock and of imminent danger continued 
through many months, it is doubtful whether an executive de- 
partment not closely in touch with public opinion in all its 
phases could have held the nation together. The " union 
sacree " in which President Poincare, in his address to the 
chambers on August 4, 1914, found all parties of the nation 
combined was only maintained through the long ordeal by cast- 
ing upon each party a share of the national burden. As the 
event proved the responsibility was not misplaced. 
Parliamentary Government during the war. A second 



io6 POLITICAL SYSTEMS IN TRANSITION 

characteristic of French democracy in the presence of the 
great crisis was the part played by the legislative body in the 
conduct of the war. While the British Parliament remained a 
more or less idle spectator and critic of the work of the Cabi- 
net, the French Chamber of Deputies undertook to exercise 
its normal legislative functions and to take an active part in 
directing the administration. For a brief period after the 
outbreak of the war parliamentary government was suspended, 
but by January, 1915, it was revived, and from that date on 
the two houses became practically permanent, the Government 
having announced that it would not exercise its constitutional 
power of adjourning them. The great commissions dealing 
with the army and with foreign affairs were thus able to hold 
continuous sessions, in spite of the traditional rule of parlia- 
mentary procedure and in spite of the special provision of the 
Constitution. A resolution was adopted by the Chamber in 
1916 in which it declared itself " resolved to fulfill its duty of 
giving a more and more constant and vigorous impulse to the 
national defense by strict cooperation with the Government." 
Secret sessions were held in which all of the military, diplomatic, 
and economic questions raised by the war were examined, and 
votes of confidence were passed accordingly. While abstain- 
ing from interference in military affairs, the Chamber was de- 
termined to see that the measures taken to furnish the neces- 
sary supplies to the army should be equal to the emergency. 
In consequence it undertook to give orders to the executive 
department and to exercise a direct and effective control over 
all the services of the Government. It is asserted by a num- 
ber of foreign observers that the commissions of the Cham- 
ber rendered valuable service to the Government, and showed 
the possibility of maintaining intimate and effective relations 
between the legislature and the executive.^ On the other hand, 

iln the following chapter it will be possible to make comparisons 
with the absence of cooperation between Congress and the Executive 
of the United States. Congress could criticise, but it could not make 
its criticism effective by bringing pressure to bear upon the Executive. 



DEMOCRATIC GOVERNMENTS 107 

in France as in Great Britain, administrative reorganization 
was considerably delayed, and it was not until December, 1916, 
that a unified control was established over the production and 
distribution of food, fuel, munitions, and military supplies. 

At the same time the committees of Congress were restricted to the 
passage of laws conferring general power upon the President and 
necessarily leaving him a wide discretion in the use of administrative 
agencies. 



PART III 

CHANGES IN THE POLITICAL INSTITUTIONS 
OF THE UNITED STATES 



CHAPTER V 

THE WAR AND THE CONSTITUTION 

Constitutional unpreparedness of the United States. 

" Constitutional unpreparedness " is perhaps the best character- 
ization of the situation in which the United States found itself 
upon its entrance into the war in April, 191 7. It was not 
merely that the country was unprepared in respect to the ac- 
cumulation of the material resources which were essential to 
the conduct of a great war; for this form of unpreparedness 
was not imposed upon the United States by its Constitution, 
but by its inability to realize the inevitableness of the conflict 
into which it was driven. No clause of the Constitution pre- 
vents Congress from taking such measures as in its judgment 
are necessary to protect the nation against enemies from with- 
out; and had it been the conviction of Congress, following th^ 
sinking of the Lusitania, that the United States must ultimately 
be ranged on the side of the Allies, not merely to protect 
American rights but to champion the cause of international 
justice, the outbreak of the war might have found a million 
trained men with equipment at hand and ships ready to convey 
them to the fighting line. But even such a state of prepared- 
ness, while it might have obviated the confusion attendant 
upon the attempt to do quickly what should have been done 
deliberately, could not have removed the constitutional diffi- 
culties involved in the actual entrance into a state of war. 

These constitutional difficulties were inherent in the polit- 
ical institutions of the country, and were the result: first, of 
the existence of a written constitution defining the powers of 
the Government and imposing limitations upon it; secondly, 
of the distribution of the powers of the central government 
between three distinct and separate agencies; and thirdly, of 

III 



112 POLITICAL SYSTEMS IN TRANSITION 

the division of the powers of government between the central 
government and the member states of the Union. The mean- 
ing and purpose of these three fundamental features of the 
Government of the L^nited States has already been pointed out 
in the sketch of the Constitutions of the great nations on the 
eve of the war, and it is only necessary here to call attention 
to the fact that in the description of the steps taken by the 
United States to meet the demands of the war we shall find 
ourselves constantly in the presence of constitutional obstruc- 
tions which at one turn or another brought the forces of the 
Government to a temporary halt. How these obstructions were 
overcome without doing open violence to the Constitution we 
shall see later ; but it cannot be denied that they were a serious 
handicap in the conduct of the war. Time was lost all along 
the line; the legislative and executive departments worked at 
times at cross purposes ; duplication of functions was fre- 
quent; and lack of coordination was a continuous feature of 
many of the boards and bureaus performing similar duties. 
So much was accomplished in the end that we are tempted to 
dwell rather upon the positive results of American participa- 
tion in the war than upon the delays and shortcomings and 
extravagances that accompanied it. It is only when we con- 
trast the balance sheet of America's effort with that of auto- 
cratic Germany, or even with that of Great Britain with its 
cabinet form of government, that we realize the cost of a 
democracy like ours and the disadvantage in which it is placed 
in time of war. 

The Constitution not solely responsible for the shortcom- 
ings of the Government. It must be confessed that not all 
the shortcomings with which the Government of the United 
States stands charged were due, as we shall see later in detail, 
to the actual impediments raised by the Constitution of the 
country. Cooperation was frequently possible between the de- 
partments of the central government and between the central 
government and the states, but failed to exist because of jeal- 
ousies of one branch of the Government towards another, or 



THE WAR AND THE CONSTITUTION 113 

because of the inefficiency of the local officials upon whom 
pressure could not be brought by the central government. In 
many instances the interference of Congress with the conduct 
of the administration was merely the result of a distrust of 
the particular officials in charge, and of an unwillingness to 
allow them a free hand which they might well have had with- 
out doing violence to the Constitution. As Professor Ford has 
said, " the administration may be criticised for incompetency, 
when the true defect was its impotence; and nowhere is the 
attitude of criticism stronger than in Congress, which is the 
creator and maintainer of that impotence." ^ The difference 
in this respect between the position of the British Parliament 
and that of the United States Congress was that the former 
body criticised with a sense of responsibility resulting from 
the fact that the administration was its own delegated body 
and could be removed from office at any time, whereas Con- 
gress, having no direct control over the administration, criti- 
cised more recklessly and was reluctant to surrender whatever 
indirect control it could exercise through the power to define 
in detail the way in which the administrative departments 
should perform their duties. Wherever criticism is divorced 
from responsibility it tends to become destructive rather than 
constructive. 

Difficulties due to traditions of individualism. Apart 
from weaknesses in the organization of the Government, there 
was a further handicap under which the Government of the 
United States labored when faced with the problems of a great 
war. The people of the United States had never been accus- 
tomed to any large measure of governmental interference either 
in their business affairs or in their private lives ; in consequence 
the Government lacked the organization needed to bring all the 
forces of the country to bear upon the single object of win- 
ning the war. On the other hand the citizen body, in spite of 
their good will, were unfamiliar with the methods of regimen- 

1 " The War and the Constitution," Atlantic Monthly, October, 1917, 
p. 487. 



114 POLITICAL SYSTEMS IN TRANSITION 

tation and discipline necessary to the most effective team work. 
Both defects were in due time made good, but as in the case of 
Great Britain, whose citizen body had been as little trained in 
that way as our own, much valuable time was lost in the pro- 
cess of adaptation. From one point of view, however, the 
unpreparedness of the American people in respect to methods 
and agencies of cooperation with the Government reflects the 
highest credit upon them. For their ready response to the de- 
mands made upon them and their ability to initiate ways and 
means, chiefly of a voluntary character, were made all the more 
manifest by their previous habits of economic and social indi- 
vidualism. 

Difficulties due to fundamental personal rights. The tra- 
ditions of the American people presented an even greater diffi- 
culty, for they involved certain fundamental rights which many 
persons were reluctant to abandon even in the presence of a 
great emergency. Freedom of speech and of the press, the 
right of assembly, the right to be free from searches and seiz- 
ures without warrant, the right to obtain a writ of habeas 
corpus and to be tried by a jury in a civil court with due 
process of law, are all rights which must at times obstruct a 
government at war, owing to the presence of agents of the 
enemy who would make use of them as a cover for their 
hostile plans. Yet the importance of those rights, as being 
of the very essence of free government, led many to hold that 
it were better to risk the danger of their abuse by foes within 
the country than to suffer them to be set aside and thus have 
a precedent established which might operate to lessen the sacred- 
ness of those rights in the future. In Great Britain, as we have 
seen, the traditions of personal freedom were as strong as in 
the United States, but Parliament, being the maker of the 
Constitution as well as of the laws of the land, was able to 
set them aside by its own act, and its judgment was final in the 
case; whereas in the United States, even had the emergency 
been the same, certain restrictions placed by Great Britain 
upon fundamental rights, such as the extension of military 



THE WAR AND THE CONSTITUTION 115 

law to the civilian population, would have run counter to the 
explicit guarantees of the Constitution. Other restrictions 
placed by Parliament were found equally compatible with a 
liberal interpretation of our own Constitution. 

The Constitution in time of war. Salus populi suprema 
lex. In the presence of a great national crisis, when the wel- 
fare of the State is at stake, is the Constitution to remain the 
supreme law of the land? And if still the supreme law, does 
this connote that its provisions must necessarily cover by im- 
plication every power which the Government at war will be 
called upon to exercise, even where the letter of the law may 
seem to fall short of conferring the actual power required? 
Congress is a body possessing only such powers as are enumer- 
ated in the Constitution; all other powers are reserved to the 
states which compose the nation. But Congress is at the same 
time the body which declares war and is under the Constitu- 
tion responsible, together with the President, for the successful 
prosecution of it. May it therefore assume such powers as 
belong to the Government of a unitary sovereign nation, on 
the theory that the reserved rights of the member states would 
otherwise be in danger of extinction? Moreover, there are 
restrictions imposed upon Congress by the Amendments guar- 
anteeing the inviolability of the fundamental rights of citizen- 
ship. Do these guarantees continue to hold in time of war, 
or may they be set aside where the emergency demands it? 
Must freedom of speech and of the press, the right of assembly, 
and the immunity from searches and seizures without warrant, 
yield to the urgent need of national unity in time of war? 
Or on the other hand are there limits beyond which Congress 
cannot go in restricting individual liberty, so that legislation 
passed under guise of the war powers may be contested as 
not being properly within them? If restrictions upon personal 
liberty are permissible, may the judgment of Congress as to 
the needs of the situation be questioned by the judicial branch 
of the Government? These questions may seem to have an 
academic character, but it must be remembered on the one 



ii6 POLITICAL SYSTEMS IN TRANSITION 

hand that the Government of a federal state is only possible 
by a jealous maintenance of local self-government against the 
inevitable encroachments of federal control, and on the other 
hand that insistence upon national unity in time of war by 
various forms of coercion tends to perpetuate itself after the 
emergency has passed, so that in both cases any concessions of 
unlimited power to the Government in time of war must act 
as dangerous precedents for a continued exercise of such 
powers in time of peace. 

Congress as the legislature of a sovereign state. It must 
be conceded that there is some warrant for holding that the 
power of Congress in time of war rises superior to any con- 
stitutional limitations. In a case involving the right of Con- 
gress to forbid the entrance of Chinese into the United States, 
the Supreme Court, after arguing that the right to exclude 
or expel aliens was an inherent and inalienable right of every 
sovereign and independent nation, spoke as follows : " The 
United States are a sovereign and independent nation, and are 
vested by the Constitution with the entire control of inter- 
national relations, and with all the powers of government neces- 
sary to maintain that control and to make it effective." ^ But 
if this is true with respect to restrictions upon immigration 
how much more true with respect to that most vital right of 
every sovereign state, the right to defend itself with all its 
forces against an enemy state ? An even more pertinent argu- 
ment is to be found in the Second Legal Tender case, in 

1 Fong Yue Ting v. United States, 149 U. S., 698. In his comment 
upon this case Professor Willoughby makes the following remarks : 
" In short, it may be stated as an established principle of our consti- 
tutional law that the supreme purpose of our Constitution is the estab- 
lishment and maintenance of a State which shall be nationally and 
internationally a sovereign body, and, therefore, that all the limitations 
of the Constitution, express and implied, whether relating to the re- 
served rights of the States or to the liberties of the individual, are to 
be construed as subservient to this one great fact" " The Constitu- 
tional Law of the United Staites," Vol. I, p. 65'. This nationalistic in- 
terpretation of the Constitution is, however, questioned by other writers. 



THE WAR AND THE CONSTITUTION 117 

which the Supreme Court passed upon the right of Congress 
to make treasury notes legal tender during the financial crisis 
of the Civil War. In 1862, when the treasury was low and 
other forms of raising money were inadequate to meet the 
demands made upon the Government, Congress authorized the 
issue of half a billion dollars of paper money, based only 
upon the credit of the Government and made valid for the 
payment both of taxes and of private debts contracted before 
the passage of the act. The act was at first declared un- 
constitutional, but was upheld in a later case and justified 
as the legitimate exercise of war powers.^ In a concurring 
opinion rendered by Justice Bradley the argument was made 
that " the United States is not only a government, but it is 
a national government, and the only government in this coun- 
try that has the character of nationality. It is invested with 
power over all the foreign relations of the country, war, 
peace, and negotiations and intercourse with other nations ; 
all which are forbidden to the state governments, . . . Such 
being the character of the general government, it seems to be 
a self-evident proposition that it is invested with all those 
inherent and implied powers which, at the time of adopting 
the Constitution, were generally considered to belong to every 
government as such, and as being essential to the exercise of 
its functions." The Justice himself had some doubt of the 
validity of his reasoning, for he asserted that " if this propo- 
sition be not true " Congress had express authority to make 
such laws under the clause of the Constitution giving it the 
power " to make all laws necessary and proper " for carrying 
into effect the powers specifically enumerated. The danger 
involved in the argument of Justice Bradley is that to concede 
to Congress the powers belonging to the legislature of a sover- 
eign state is to break down the traditional doctrine, sanctioned 
by a long line of judicial decisions, that the United States 
is in all its operations a government of enumerated powers, 

'■Knox V. Lee, 12 Wallace's Reports, 457. 



ii8 POLITICAL SYSTEMS IN TRANSITION 

and thus to open the way for a centralization of authority in 
Washington which would make serious inroads upon the consti- 
tutional rights of the states of the Union.^ 

War powers without restrictions. A more recent asser- 
tion of the unlimited powers of the Government in time of 
war comes from the pen of a strong nationalist. Senator 
Sutherland draws a distinction between the canons of consti- 
tutional interpretation to be applied in times of peace and the 
" assumptions " and " constructions " necessary in time of war ; 
and he upholds the position taken by Justice Strong in the 
Second Legal Tender case, where, as we have seen, a very 
wide interpretation was put upon the powers of Congress, quot- 
ing with approval the statement of the court that" it is not 
to be denied that acts may be adapted to the exercise of lawful 
power, and appropriate to it, in seasons of exigency, which 
would be inappropriate at other times." Justice Strong was 
careful, however, to base his justification of the Legal Tender 
Acts upon the urgent necessities of the " time " and the " cir- 
cumstances " under which " Congress was called upon to de- 
vise means for maintaining the army and navy, for securing 
the large supplies of money needed and, indeed, for the preser- 
vation of the Government created by the Constitution." Sen- 
ator Sutherland seems to be ready to dispense even with the 
necessity of making inferences from powers actually granted, 
and believes that the power of the general government in time 
of war to sharpen the sword and strengthen the purse " exists 
without any restrictions whatsoever " save such as are imposed 
by other express prohibitions of the Constitution. Even these 
restrictions may be suspended when " they conflict with the 
paramount powers of war." He frankly faces " the alterna 
tive of violating the Constitution, or sacrificing the Republic," 
and repeats and applies to the existing situation (in 191 7) the 
words of Lincoln in 1864: "I felt that measures, otherwise 

1 This centralization of authority in what may be regarded as national 
matters might indeed have its advantages; but the issue is one of such 
importance that it should be squarely faced. 



THE WAR AND THE CONSTITUTION 119 

unconstitutional, might become lawful by becoming indispen- 
sable to the preservation of the Constitution through the preser- 
vation of the Union." ^ 

Inferences from the power " to raise and support armies." 
It may seem an over-subtle distinction to make, but it is 
sounder constitutional law to justify the broad powers assumed 
by Congress during the war by inference from the war clauses 
of the Constitution. After giving Congress the power to de- 
clare war, the Constitution in the following clause gives Con- 
gress the power " to raise and support armies," and in the 
next clause the power " to provide and maintain a navy." 
Other secondary powers are granted relative to the organiza- 
tion and regulation of the forces thus raised. To these ex- 
press powers must be added the implied powers contained in 
a subsequent clause of the Constitution granting power to 
Congress " to make all laws which shall be necessary and 
proper for carrying into effect the foregoing powers." Are 
not these terms sufficiently inclusive to embrace by inference 
every power which in the judgment of Congress might con- 
tribute to the strengthening of the fighting arm of the nation, 
without going to the extent of conferring upon Congress author- 
ity which might encroach, as by sovereign right, upon the self- 
governing powers of the States or the liberties of the individ- 
ual citizen? The actual grant of power to Congress is com- 
prehensive and unrestricted, and it is a striking feature of a 
Constitution, which in other matters imposes so many limita- 
tions upon the governing bodies, that in respect to the conduct 
of war it leaves them such a free hand. If its framers deliber- 
ately hedged in the departments of the Government with re- 
strictions in the conduct of domestic affairs in time of peace, 
they at least showed no intention of placing any direct impedi- 
ments upon the Government when confronted with enemies 
from without. As Hamilton observed at the time, the powers 
essential to the common defense " ought to exist without limi- 
tation, because it is impossible to foresee or define the extent 

1 " Constitutional Power and World Affairs," pp. 92-99. 



120 POLITICAL SYSTEMS IN TRANSITION 

and variety of national exigencies, or the correspondent ex- 
tent and variety of the means which may be necessary to 
satisfy them." ^ His argument was, however, based upon 
powers actually granted, not upon an assumption of national 
sovereignty which would have been repudiated by the great 
body of his readers. 

War powers and State rights. But if the Constitution has 
seen to it that Congress shall not be limited in the means which 
it may take for the successful prosecution of war by reason 
of want of adequate power to act, it has left to be settled 
by inference how far limitations may arise in consequence of 
a conflict of the war powers of Congress with other clauses 
of the Constitution. Where the conflict is with normal powers 
exercised by the States the inference would seem clear that 
the latter must give way. For the powers " reserved " to the 
States by the loth Amendment are all those which have not 
been expressly delegated to Congress, and it is not difficult 
to conclude that in so far as the powers of Congress are neces- 
sarily enlarged in time of war the powers reserved to the States 
are to that extent restricted. As we shall see in a subse- 
quent chapter, the recent war led the Federal Government to 
enter many portions of the field of normal state legislation 
which were completely closed to it in times of peace. With 
the completion of demobilization these direct encroachments 
came to an end, but the Federal Government has continued to 
exercise a number of activities which are outside of its normal 
range, but which have not been contested by the States because 
of the obvious advantage of federal action under the circum- 
stances. 

Individual rights in time of war. The situation with re- 
gard to encroachments upon the fundamental rights of citizen- 
ship is a more difficult one to adjust. As a general principle 
it may be stated as the accepted law that the constitutional 
guarantees of personal rights are not absolute, but conditional 
guarantees. This is true, as we have seen, even in times of 

I " Federalist," No. 23- 



THE WAR AND THE CONSTITUTION 121 

peace, and is obviously all the more true in time of war when 
the conditions which may call for a restriction upon personal 
rights are so much more urgent. Two questions are thus 
presented : are the war powers of Congress so far paramount 
as to suspend altogether the rights guaranteed by the Constitu- 
tion; And if not, then is it within the legislative judgment 
of Congress to decide whether the necessity exists for sus- 
pending those rights in whole or in part, or is the judicial 
branch of the Government the ultimate arbiter? In answer 
to the first question it may be stated in the language of a 
recent decision of the Supreme Court, in which the validity of 
war-time prohibition was at issue, that " the war power of the 
United States, like its other powers and like the police powers 
of the States, is subject to applicable constitutional limita- 
tions." ^ The controlling precedent upon this question is the 
important case of Ex parte Milligan,^ decided in 1866, in 
which a majority of the court distinctly repudiated the posses- 
sion of any absolute war powers by Congress such as would 
give it the right to set aside trial by jury in the case of a 
civilian who had committed an offense against the criminal law. 
" The Constitution of the United States," said the court in this 
case, " is a law for rulers and people, equally in war and in 
peace, and covers with the shield of its protection all classes 
of men, at all times, and under all circumstances. No doc- 
trine, involving more pernicious consequences, was ever in- 
vented by the wit of man than that any of its provisions can 
be suspended during any of the great exigencies of government. 
Such a doctrine leads directly to anarchy or despotism, but the 
theory of necessity on which it is based is false ; for the Govern- 
ment, within the Constitution, has all the powers granted to 
it which are necessary to preserve its existence, as has been 
happily proved by the result of the great effort to throw off 
its just authority." It follows from this ruling that the answer 

1 Hamilton v. Kentucky Distilleries and Warehouse Company, de- 
cided December 15, 1919. 

2 4 Wallace's Reports, 2. 



122 POLITICAL SYSTEMS IN TRANSITION 

to our second question must be that it is for the courts of 
justice to decide whether the circumstances arising out of the 
war are such as to authorize the suspension of fundamental 
rights. Congress may not, therefore, by its mere legislative 
decree, create a necessity in law which does not exist in fact, 
so that in each case the presumption is in favor of the con- 
tinuance of the enjoyment of fundamental rights in time of 
war, and the burden is upon the Government to prove that the 
restrictions placed by Congress were actually called for by 
the public need.* 

1 Specific application of this principle will be found in the cases dis- 
cussed in connection with the enforcement of the Espionage and Sedi- 
tion Acts. See below, pp. 171-173. 



CHAPTER VI 

WAR POWERS OF THE PRESIDENT 

Powers of government and administrative organiza- 
tion separately treated. In proceeding to examine the 
actual changes introduced into the Government of the United 
States as a means of adapting itself to the demands of the 
war, it will help to present the situation as a political issue 
if we treat separately the extension of the functions of gov- 
ernment into new fields of activity and the administrative 
organization created to carry into effect the duties thus as- 
sumed. It will thus be possible to distinguish between de- 
fects in the political machinery due to want of power in the 
executive department to take the necessary action, and defects 
due to lack of proper administrative agencies by means of 
which the powers actually granted could have been exercised 
to best advantage. The questions arising in connection with 
the functions of government relate mainly to the new legisla- 
tion passed by Congress to meet the emergency. This new 
legislation endowed the President with a wide range of powers 
and enabled him as chief executive to bring the resources of 
the nation to bear upon the support of the armies of which 
he was commander-in-chief. It will help to clear the ground 
for a discussion of these new executive powers if we consider 
first the scope of the war powers conferred upon the President 
by the Constitution independently of any auxiliary legislation 
on the part of Congress. 

The President as commander-in-chief of the army and 
navy. By the Constitution the President is made " commander- 
in-chief of the army and navy of the United States, and of 
the milJda of the several States, when called into the actual 

12S 



124 POLITICAL SYSTEMS IN TRANSITION 

service of the United States." In pursuance of this power 
the President has authority to perform all those functions 
which by their nature belong to the position of commander- 
in-chief. What those functions are the Constitution does not 
define, and it is only by inference that they can be held to include 
such duties as relate to the planning of campaigns, the dis- 
position of military and naval forces, the direction of opera- 
tions, and the execution of the provisions of military law. 
The distinction between the war powers of the President and 
those of Congress is well brought out in a concurring opinion 
rendered in the case of Ex parte Milligan, in which the Supreme 
Court passed upon conditions arising during the Civil War. 
" Congress has the power," said the four members of the 
court, " not only to raise and support and govern armies, but 
to declare war. It has, therefore, the power to provide by 
law for carrying on war. This power necessarily extends to 
all legislation essential to the prosecution of war with vigor 
and success, except such as interferes with the command of 
the forces and the conduct of campaigns. That power and 
duty belong to the President as Commander-in-Chief. Both 
these powers are derived from the Constitution, but neither is 
defined by that instrument. Their extent must be determined 
by their nature, and by the principles of our institutions." 
No more in war than in peace may the President intrude upon 
the proper authority of Congress nor Congress upon the proper 
authority of the President. " Both are servants of the people, 
whose will is expressed in the fundamental law." ^ The re- 

14 Wallace's Reports, 2. The distinction is further elaborated by- 
Professor Fairlie as follows : " It is thus difficult, if not impossible, 
to draw a strict line of demarcation between the authority of Con- 
gress and that of the President. But the general principles of de- 
marcation can be indicated; and in practice there have been very few 
conflicts. Congress regulates what is of general and permanent im- 
portance, while the President determines all matters temporary and 
not general in their nature. Thus Congress authorizes the total num- 
ber of men in the army, their distribution among the different branches 
of the service, the number and kind of arras, the location and char- 
acter of forts; and the President, as chief executive, must carry out 



WAR POWERS OF THE PRESIDENT 125 

strictions upon the control by the President of the appoint- 
ment of the officers of the army and navy are the result 
of another clause of the Constitution which provides for the 
appointment by the President, with the advice and consent of 
the Senate, of ambassadors, judges, and " all other officers of 
the United States whose appointments are not herein other- 
wise provided for, and which shall be established by law." 
As a matter of fact, however, Congress, acting under a subse- 
quent clause of the same paragraph empowering it to " vest 
by law the appointment of such inferior officers, as they think 
proper, in the President alone," has not only made it a matter 
of form to confirm the nominations of the President to the 
higher posts in the army and navy, but has authorized the 
President to appoint subordinate officers without sending their 
names before the Senate. 

The President's authority over the state militia. It is a 
curious feature of our federal system of government, viewed 
from the standpoint of the present day, that while the power 
to organize, arm, and discipline the militia was given to Con- 
gress, the Constitution reserves to the several States the appoint- 
ment of the officers and the authority of training the militia 
according to the discipline prescribed by Congress. The pur- 
pose of the provision was to secure uniformity in the training 
of the militi-a, without arousing the fears of the States that the 
militia, when placed under the direction of the national author- 
ity, might be "rendered subservient to the views of arbitrary 
power." ^ The result of the provision is, however, that when 

the statutes on these matters. But the President, as commander-in- 
chief, decides where the different parts of the army and navy are to 
be stationed and moved, the strength and composition of garrisons and 
field forces, and the distribution of arms and ammunition. Congress 
has power to declare war (although hostilities may commence without 
such a declaration), and decides what means it will grant to conduct 
the war; but the President decides in what way the war shall be con- 
ducted, directs campaigns and establishes blockades, and also may do 
whatever is necessary to weaken the fighting power of the enemy." 
" The National Administration of the United States of America," p. 33. 
^ " The Federalist, No. 29. 



126 POLITICAL SYSTEMS IN TRANSITION 

war breaks out and the President, under the authority of Con- 
gress, calls forth the state militia to assist the Government in 
the prosecution of the war, he finds at his disposal a body of 
men disciplined according to a uniform system, but commanded 
by officers who may in many cases be entirely unfit for the 
duties they are called upon to perform. It then becomes neces- 
sary, as at the beginning of the present war, for the -federal 
military stafiF to institute an investigation and examination 
directed towards the elimination of the appointees of the States 
who do not measure up to the standards in force in the 
" regular " army. The troops themselves constituting the 
militia pass completely under federal control when once called 
into service. 

Political powers assumed by the President during the 
Civil War. The powers exercised by the President as com- 
mander-in-chief of the army and navy are strictly military 
powers and cannot be used outside of that restricted field. 
There are, is it true, precedents to the contrary created during 
the Civil War when the President assumed the power to de- 
clare martial law and to exercise other political powers not 
specifically conferred upon him. While President Buchanan 
felt himself powerless to act, in the absence of authority from 
Congress, to compel the seceding States to obey the laws of 
the Union, President Lincoln acted with fewer scruples as to 
the powers of his office. The most striking instance of his 
arbitrary interpretation of his duties as chief executive was 
in connection with his attempts to suppress opposition to the 
policies of the Government from persons in the North who 
sympathized with the cause of the Southern States. Secret 
service agents of the Government undertook to search private 
houses without warrant in spite of the provisions of the Con- 
stitution, and large numbers of citizens, including editors, 
judges, and members of a state legislature, being suspected of 
disloyalty, were arrested by military order and confined in 
prison. The President thereupon proclaimed the suspension 
of the writ of habeas corpus, interpreting the Constitution as 



WAR POWERS OF THE PRESIDENT 127 

giving that power to the Executive, and the protest of Chief 
Justice Taney proved unavailing. Subsequently Congress, by 
the Habeas Corpus Act of 1863, formally sanctioned the mili- 
tary courts and authorized the President to suspend the writ. It 
was only when the war was over and the emergency had been 
met that the Supreme Court of the United States entered a 
judgment to the effect that neither the President nor Congress 
had any power under the Constitution to declare martial law 
and set up military courts for the trial of civilians in regions 
" where the courts are open and their process unobstructed." 
" Civil liberty and this kind of martial law," said the court, 
" cannot endure together ; the antagonism is irreconcilable and, 
in the conflict, one or the other must perish." ^ While the 
question whether the President may constitutionally suspend 
the writ of habeas corpus upon his own initiative has not been 
passed upon directly by the Supreme Court, the weight of au- 
thority appears to be that he cannot do so, but must await 
authorization from Congress. The suspension of the writ does 
not of itself affect the jurisdiction of the civil courts or the 
application of the common law. 

Political powers exercised by President Wilson. During 
the recent war the President wisely refrained from exercising 
the arbitrary powers assumed by President Lincoln during the 
Civil War. It is true that the emergency was not as great, 
for while there were numerous agents of the enemy upon the 
soil of the country and numerous sympathizers ready to aid and 
abet them, yet the United States was sufficiently far removed 
from the theater of the conflict to be able to bring offenders to 
terms by the normal processes of the law. But while the 
President did not assume any such extraordinary powers, he 
used the collateral powers of his office to obtain what political 
advantage he might over the enemy. In this respect his policy 
offers a parallel to Lincoln's Emancipation Proclamation, ex- 
cept in that Lincoln's act was without constitutional warrant. 
Having no authority from Congress, and acting solely in his 

1 Ex parte Milligan, 4 Wallace, 2 ; 1866. 



128 POLITICAL SYSTEMS IN TRANSITION 

character of commander-in-chief, Lincoln issued on September 
23, 1862, a proclamation freeing the slaves in the enemy states. 
The proclamation was in form a war measure and affected 
only those states not occupied by the Union forces. Its obvious 
design was to weaken the enemy ; but underlying this purpose 
was the intention of the President, who had previously made 
the question of slavery subordinate to- that of preserving the 
Union, to create a new and higher moral issue which might 
serve as a standard around which many in the North who were 
lukewarm in their support of the Union might rally. It did 
in fact have this effect in the end, but at the time of its issue 
it seemed that the President had misjudged public opinion, 
for the elections which followed resulted in anti-war majori- 
ties in a number of the Northern states which previously had 
been strongly Republican. But henceforth the war became not 
merely a war to save the Union but a war to free the slaves, 
and on the s-trength of that new issue the federal armies as- 
sumed the role of liberators rather than of conquerors. 

Grounds of war, and objects sought by it. Whether with 
conscious or unconscious political motives, the same necessity 
of rising from technical grounds to a higher plane of moral 
appeal was impressed upon President Wilson from the very 
beginning of the war. The distinction between the legal issues 
upon which the United States was led to abandon its position 
of neutrality and declare war upon Germany and the ideals 
which were set before the people as the object to be accom- 
plished by the war is a striking commentary upon the illogical 
character of the international law which prevailed in 1917.^ 
But our present interest is in the use by President Wilson of 
his constitutional position as spokesman for the United States 
before the world to create popular support for the war which 
the technical grounds of the conflict might have been inade- 

iThus, it is difficult to understand how a nation could remain neu- 
tral in the presence of international crime so long as it was not itself 
the victim, and yet make the redress of that crime part of its war aims 
once it had been brought into the war because of a violation of its 
own rights. 



WAR POWERS OF THE PRESIDENT 129 

quate to win. The address of the President to Congress on 
April 2, 1917, calHng for a declaration of war against Germany 
refers to the renewal of the submarine warfare without any 
restrictions, and recites the wrong done to the United States 
in the persons of its citizens and in its property. Congress was 
then advised to declare that the acts of Germany constituted 
war against the United States, and to accept the status of bel- 
ligerency thus thrust upon it. The rest of the address develops 
in detail the " motives " and the " objects " of the United States 
in entering the war. " Our object now, as then, is to vindicate 
the principles of peace and justice in the life of the world 
as against selfish and autocratic power, and to set up among 
the really free and self-governed peoples of the world such 
a concert of purpose and of action as will henceforth ensure 
the observance of those principles. . . . We are glad ... to 
fight thus for the ultimate peace of the world and for the 
liberation of its peoples, the German peoples included ; for the 
rights of nations, great and small, and the privilege of men 
everywhere to choose their way of life and of obedience. The 
world must be made safe for d'emocracy." No one will doubt 
the power of the President's appeal at the time it was made. 
It aroused the spirit of the crusader in the minds of thousands 
who would have responded but lukewarmly to the call to defend 
American commerce against the illegal German blockade, and 
it sanctified as it were the narrower spirit of patriotism and 
transformed it into devotion to the cause of humanity itself. 
Europe heard the appeal and new heart was infused into the 
ranks of the Allies. For the President's voice was the voice of 
America, as the voice of no other public man could have been. 
The recognition of new states. In one other important 
respect President Wilson used his constitutional position as 
spokesman of the nation in the conduct of foreign affairs to 
assist the cause of the armies in the field. Having proclaimed 
it as one of the objects of the war to secure the liberation of 
oppressed peoples on the principle of the self-determination of 
distinct national groups, the President followed the policy of 



I30 POLITICAL SYSTEMS IN TRANSITION 

encouraging several of those groups to break away from their 
allegiance to Austria and to declare their independence while 
the war was still in- progress. The negotiations looking to 
this result could not, of course, be carried on with the duly 
elected representatives of those peoples, since the condition of 
war precluded an organized movement on their part. It was, 
however, possible in the case of the Czechoslovaks to have 
dealings with a National Council having headquarters at Wash- 
ington -and Paris; and in September, 1918, Secretary Lansing 
communicated to the President of the National Council the 
recognition by the United States of the belligerency of the 
Czechoslovaks and the recognition of the National Council as 
the de facto government. The official recognition of an ab- 
sentee government in command of a number of distinct armies 
fighting against the nation of which their territory was still a 
de facto part, and to which th/sir brethren in Bohemia, Moravia, 
and Slovakia were still rendering a formal allegiance, was of a 
unique character in the history of international law. The 
traditional rule of international law has been that a new na- 
tion will be recognized by the existing members of the family 
of nations only when, after successful revolution against the 
state of which it was formerly a part, it has given evidence of 
its ability to maintain itself. In most cases the new com- 
munity is recognized as a de facto belligerent before its final 
recognition as a de jure state is accorded. In every instance 
the claimant for international recognition must have obtained 
possession of definite territory and must have organized a gov- 
ernment capable of giving expression to the will of its people. 
But in the case of the recognition of the Czechoslovak nation 
these conditions were not fulfilled. In the case of the Jugo- 
slavs semi-official recognition was given as early as May 29, 
1918, when the Department of State announced at the time of 
the Congress of the Oppressed Races of Austria-Hungary held 
in Rome, " that the nationalistic aspirations of the Czechoslo- 
vaks and the Jugoslavs for freedom have the earnest sympathy 
of this government." But owing to the internal difficulties 



# 



j±_ 



WAR POWERS OF THE PRESIDENT 131 

attending the composite character of the new state, no further 
steps could be taken in the direction of recognizing its de facto 
independence until the meeting of the Peace Conference in 
Paris. 

The President as the agent of Congress. In addition to the 
powers conferred upon the President by the Constitution in 
respect to the army and navy and the conduct of the foreign 
affairs of the country, there is the great body of war powers 
which he exercises in pursuance of authority conferred upon 
him by Congress. By the Constitution the " executive power " 
is vested in the President and he is called upon to " take care 
that the laws be faithfully executed." He is thus made, in 
respect to these executive functions, as it were the agent of 
the legislative body for the purpose of enforcing its decrees, 
and by the letter of the Constitution he is supposed only to 
act where there is a definite law to be enforced. While it was 
not originally intended that the administrative departments of 
the Government, except in respect to political functions, should 
be under his direct control and the heads of these departments 
subject to his personal direction, the obvious impossibility of 
having the President responsible for the execution of the 
laws without having a voice in the manner in which the laws 
were being executed led to his gradual assumption of control 
over the departments, and to the acquiescence both of Con- 
gress and of the courts in the exercise of such authority. The 
result was that while Congress continued to prescribe in con- 
siderable detail the organization of the administrative depart- 
ments and the duties of the heads of the departments, the 
President came to exercise control, backed by his power of re- 
moval from office, over the performance of their duties by the 
administrative heads, and thus became in actual practice the 
head of the administrative system.^ 

Power of the President to issue regulations. The posi- 
tion of the President as administrative chief has been greatly 

^ See W. W. Willoughby, " Constitutional Law of the United 
States," II, pp. 1156-1159. 



132 POLITICAL SYSTEMS IN TRANSITION 

strengthened by the wide latitude allowed by Congress to the 
Executive in framing the " regulations " by which the provisions 
of various acts are to be put into effect. While Congress has 
the power to frame its legislation so as to cover the most mi- 
nute details, it must under ordinary circumstances limit the 
terms of the law to a statement of general principles and their 
more important applications, and is obliged to delegate to the 
Executive the power to define the conditions under which the 
provisions of the law shall be effective. The result has been 
the growth of a great body of executive regulations, some of 
them in the form of legal codes, governing the administra- 
tion of the several departments of the Government. These 
regulations are for the most part expressly authorized by 
Congress, and may be issued either by the President or more 
often by the heads of the respective departments. In other 
cases executive regulations are issued by the President or by 
subordinate administrative officers in the exercise of an author- 
ity implied from the nature of the law to be executed or the 
duty to be performed by the administrative departments. In 
Great Britain it was found necessaiy at the beginning of the 
war to increase greatly the scope of " orders in Council," which 
the Cabinet as the executive body of the Government might 
issue to meet contingencies which could not have been fore- 
seen by Parliament. Thus we have seen that the Defense of 
the Realm Act was followed by a series of " regulations " ten 
times the length of the original act, which, considering the 
importance of its subject-matter, was remarkably brief. So too, 
in the United States, Congress found it necessary to confer 
upon the President even more liberal powers in the issuance 
of executive regulations than had been previously exercised 
by him. For example, the Food and Fuel Control Act author- 
ized the President among other things to " fix the price of coal 
and coke and to establish rules for the regulation of their 
production, distribution, and storage " ; and it provided that if 
in the opinion of the President any producer failed to conform 
to the regulations his plant might be requisitioned by the Presi- 



WAR POWERS OF THE PRESIDENT 133 

dent and operated during the period of the war. The signifi- 
cant feature of these " regulations " is that in many cases the 
penalties of the law attached to the violation of them in their 
specific terms. In both Great Britain and the United States 
this is a departure from the traditions of Anglo-Saxon law, 
which require that in criminal statutes the ofifense to which the 
penalty is attached shall be defined by the legislature in the 
most specific terms possible. So great were the powers pos- 
sessed by President Wilson that for the time his position was 
one of virtual dictatorship over a wide field covering whatever 
activities of the people might in the opinion of Congress be 
made to contribute, whether affirmatively by regulation or 
negatively by prohibition, to the strengthening of the military 
arm of the government.^ 

Executive acts w^ithout warrant from Congress. More- 
over, the power of the President as chief executive in many 
cases went beyond the limits of statutory authorization. In 
theory the President can only act in so far as the legislative 
body has, by its enactments, given him laws to execute. Un- 
less Congress has specifically given him power to act, his hand 
is stayed. But in actual practice Presidents have frequently 
undertaken to issue instructions and to take executive action 
in cases where there was no specific statutory provision cover- 
ing the case. In these instances they have interpreted their 
constitutional obligation to " take care that the laws are faith- 
fully executed " as authorizing them to resort to measures of 
enforcement not contemplated by Congress because of its failure 
to anticipate the particular need. When the free passage of 
the mails was being impeded by a strike of railway employees 
in Chicago in 1893, President Cleveland considered himself 
authorized to call out the federal troops to remove the ob- 
struction, even though no provision had been made for such 

^ The extent to which executive regulations, in the form of supple- 
mentary laws, have come to control the public administration of the 
United States may be gathered from an article by Professor J. A. 
Fairlie, "Administrative Legislation," "Michigan Law Review," Janu- 
ary, 1920. 



134 POLITICAL SYSTEMS IN TRANSITION 

action. In like manner the Attorney-General of the United 
States authorized in 1889 the appointment of a United States 
marshall for the purpose of protecting a federal judge in the 
performance of his official duties, although there was no law of 
Congress providing for such protection ; and the action thus 
taken by the Department of Justice was upheld by the Supreme 
Court of the United States as being within a just interpre- 
tation of the constitutional obligation of the President.^ The 
court put to itself in this case the important question whether 
the executive duty of the President is " limited to the enforce- 
ment of acts of Congress or of treaties of the United States 
according to their express terms, or does it include the 
rights, duties and obligations growing out of the Constitution 
itself, our international relations, and all the protection im- 
plied by the nature of the Government under the Constitution? " 
The question was answered by the court in the affirmative in 
so far as the special issue before it was concerned. As a 
general proposition, however, the interpretation of the execu- 
tive power of the President suggested by the court would con- 
stitute a serious encroachment upon the comprehensive legisla- 
tive powers assigned to Congress. For it is to Congress that 
the Constitution gives the power " to make all laws which 
shall be necessary and proper for carrying into execution " not 
only the powers granted to Congress itself but all other 
powers vested by the Constitution in any department or of- 
ficer of the government. 

Wide scope of the executive power. The result of the 
transfer by Congress to the President of the express authority 
to make executive regulations, and of the authority assumed 
by the President in other cases either from an implied authori- 
zation of Congress or directly from his constitutional func- 
tions, is that it is difficult at times to trace the precise source 
from which the President derives his power in a given case. 
The point might be regarded as of no partcular consequence in 
normal times, but becomes one of considerable interest in time 

1 In re Nagle, 135 U. S., i. 



WAR POWERS OF THE PRESIDENT 135 

of war when great pressure is brought to bear upon the execu- 
tive branch of the Government to undertake functions which are 
believed necessary to meet the emergency, but which have not 
been directly authorized by Congress. An examination of 
the wide range of activities entered upon by the Government 
during the recent war will disclose many assertions of power 
by the executive branch for which only the remotest statutory 
authorization can be found. The steps taken by the Presi- 
dent to bring about an amicable adjustment of the relations 
between labor and capital in respect to war industries, and 
particularly the creation of the Committee on Public Informa- 
tion, are instances of such executive action. In the following 
pages which describe the legislation adopted by Congress to 
enable the President to prosecute the war more effectively, 
we shall find the President at times acting in pursuance of 
powers directly conferred, at times exercising powers implied 
from the existence of the administrative departments and the 
change in their functions necessitated by the circumstances of 
the war, and again at times exercising powers for which there 
was no direct or indirect statutory authorization, but which 
might be inferred from the general constitutional position of the 
President as chief executive. That the sum total of the powers 
thus exercised constituted an enormous accession of executive 
control over the life of the country is manifest to the observer 
at every turn. The need was urgent, the President endeavored 
to meet the demand, Congress acquiesced with more or less pro- 
test according to the circumstances, and the public at large, 
having principally in view the winning of the war, gave its ap- 
proval without regard to the technicalities of constitutional 
law.^ 

The Committee on Public Information. One of the most 
important of the executive agencies established by the Govern- 
ment for the more successful prosecution of the war was the 

^The powers of the President will be further discussed in connec- 
tion with the organization of the government in time of war and the 
relation of tlie executive department to Congress. See below, p. 185. 



136 POLITICAL SYSTEMS IN TRANSITION 

body known as the Committee on Public Information. On 
April 14, 1917, the President issued an executive order creat- 
ing this committee and appointing as members of it the Secre- 
taries of State, War, and the Navy, together with a civilian, 
Mr. Creel, as executive head of Committee. Its general pur- 
pose was to control the publication of information of a military 
character, acting in this capacity as a sort of censorship board, 
and on the other hand to act itself as an organ of publicity by 
giving out authoritative information on those matters which it 
was believed could be safely made public. We shall see below 
that the several attempts made to have Congress adopt legis- 
lation authorizing a censorship of the press failed in the pres- 
ence of the traditional principles of the American people in 
that matter ; but that upon the failure of a compulsory censor- 
ship a voluntary system was acquiesced in by the press in the 
form of the submission of doubtful news to the Committee on 
Public Information for its advice. On its part the Com- 
mittee prepared for the press a statement of the character of 
the news which the Government deemed it hurtful to be given 
publicity, and appealed to the patriotism of the press to sup- 
port the program of the Government. At the same time a 
Division of News was created to furnish the smaller newspapers 
with a weekly summary of current war news. 

Educational work of the Committee. Apart from its re- 
lations to the press the Committee on Public Information under- 
took to carry on a nation-wide educational propaganda, which 
proved to be a most valuable means of rallying the people to 
the support of the Government. Pamphlets were issued set- 
ting forth the grounds upon which the United States was led 
to declare war against Germany, the objects and aims which 
the United States had in view as the result to be attained by a 
successful war, and the character and conduct of the Govern- 
ment against which the United States was fighting.^ These 

i"How the War Came to America" and "The War Message and 
the Facts Behind It," to cite the titles of but two of the series, con- 
tain a review of the historical policy of the United States in respect to 



WAR POWERS OF THE PRESIDENT 137 

pamphlets were widely distributed, and were supplemented by 
articles written by prominent writers and syndicated in the re- 
presentative newspapers of the country. A daily Official Bul- 
letin was published in which authoritative information was 
given of the military and civil activities of the Government, and 
which was displayed in the post-offices of the country and cir- 
culated at a minimum price. A Division of Four-Minute Men 
was established by means of which the voluntary services of 
speakers were engaged for brief addresses during the inter- 
missions at motion-picture theaters ; while photographs were 
taken and motion-picture films prepared as a means of describ- 
ing in a more graphic way the work of the various branches of 
the government. At the same time the volunteer services of 
artists and of advertising agencies were enlisted for the pur- 
pose of educating the public by means of posters, cartoons, and 
newspaper advertisements. The remarkable unanimity, con- 
sidering the diversity of the population of the United States in 
race and traditions, with which the public responded to the 
demands made upon them by the Government must be ascribed 
in no little part to the educational campaign thus conducted. 

Criticism of the work of the Committee. It is easy, after 
the event, to point out the defects in the work performed by the 
Committee on Public Information. On the credit side of its 
account it may be said that, considering the wide range of 
duties undertaken by the Committee, its work was on the whole 
accomplished with considerable ability and energy. The task 
which it set to itself was a difficult one, but the Committee 
was able to enlist the services of so many willing and compe- 
tent volunteers that within an exceptionally short time it came 
to be a sort of university extension bureau drawing to its 
courses the entire citizen body of the nation and bringing within 
its curriculum every aspect of general knowledge bearing upon 

foreign questions and an explanation of the new development of our 
policy during the period from August, 1914, to April, 1917, together 
with an annotated text of the President's message calling for a de- 
claration of war by Congress against Germany. 



138 POLITICAL SYSTEMS IN TRANSITION 

the war. At the same time, regarding the Committee as a 
government institution and judging it upon that basis, it must 
be emphasized that the mistakes which it made on a number of 
occasions were so serious as to serve as a warning against 
resort to such agencies in the future without a much 
more careful determination in advance of the character 
of the work they are to perform. To convey knowledge and 
to carry on propaganda are incompatible functions ; yet this 
was the dual aim which the Committee appeared to have in 
view in many of its appeals to the public. An agency of 
information which has the sanction of the Government behind 
it cannot properly follow the methods of the partisan editorial 
writer. While the pamphlet publications of the Committee 
were in most cases the work of scholars who sought to state 
the truth with no more bias than is inseparable from articles 
written with a political purpose, other means of imparting in- 
formation resorted to by the Committee, such as newspaper 
advertisements and in a lesser degree its own Official Bulletin, 
frequently distorted the truth in the effort to produce the proper 
impression upon the thoughtless and the uneducated. Propa- 
ganda such as the publication of the Sisson documents, relating 
to the relations between the Bolsheviki and the German Govern- 
ment, without more careful examination of their authenticity, 
helped to discredit the work of the Committee in other fields. 
Need of an agency of general information on political 
problems. A Committee on Public Information, properly con- 
ducted, is a need of peace as well as of war. The work of the 
Creel Committee, which discontinued its activities shortly after 
the signing of the armistice, gave valuable evidence of the pos- 
sibilities of useful service contained in such an agency. In 
the first place it showed a way of reaching the great body of 
the people to obtain their cooperation with federal, state, and 
city agencies in matters, such as those relating to the public 
health and the conservation of natural resources and food 
supplies, in respect to which the administration and enforce- 
ment of the law are impossible without the intelligent support 



WAR POWERS OF THE PRESIDENT 139 

of those who are to benefit from it. In the second place, al- 
though it did not meet the need, it suggested a way in which 
the public may be given precise information with regard to 
the facts involved in a number of problems before the country. 
More and more public opinion is being called upon to act as a 
court of arbitration in disputes between employers and em- 
ployees in matters where the public convenience is vitally in- 
volved. In the case of the strikes in the steel mills and in the 
coal mines in October and November, 1919, the issues in- 
volved were in a very real sense brought before the court of 
public opinion for settlement, and public opinion was obliged 
to render its decision without having at hand an impartial state- 
ment of the facts upon which the conflicting claims were based. 
The present technical bulletins issued by the separate depart- 
ments of the administration do not meet the need. 



CHAPTER VII 

EMERGENCY LEGISLATION ADOPTED BY 
CONGRESS 

Legislation in aid of the mobilization o£ the national re- 
sources. The Selective Service Act. Coming down to de- 
tails of the actual powers assumed by Congress under its con- 
stitutional authority to " raise and support armies," we may 
consider first the legislation passed with the object of mobiliz- 
ing all the resources of the country for the prosecution of the 
war, and secondly the legislation passed with the object of pre- 
venting interference with the conduct of the war. First in 
importance among the laws providing for the mobilization of 
the national resources was the Selective Service Act, approved 
May i8, 1917, entitled, "An Act to authorize the President 
to increase temporarily the Military Establishment of the 
United States." The circumstances attending the passage of 
the act are an illuminating commentary upon the theory of the 
separation of the powers of government.^ On April 5th the 
Secretary of War laid before Congress a bill prepared by the 
General Staff and approved by the President, providing that 
the regular army and the national guard should be brought to 
full war strength, and that 500,000 men (with an additional 
500,000 when it should be found necessary) should be raised 
by a selective draft. It so happened, however, that the Demo- 
cratic chairman of the Committee on Military Affairs in the 
House of Representatives was opposed to the principle of the 
draft, so that the ranking Republican member, a German by 
birth, had to be called upon to steer the bill through the House. 
At the same time both the Speaker of the House and the 
Democratic floor leader, who was chairman of the Committee 

1 See above, p. 21. 

140 



EMERGENCY LEGISLATION 141 

on Ways and Means, attacked the bill, the former declaring 
that " conscript " and " convict " were synonymous in the mind 
of the people. In spite of these obstacles the bill finally passed 
by large majorities in the Senate and in the House, and after 
three weeks' delay necessary to secure an agreement between 
the two houses on matters of detail, was sent to the President 
in a form not differing greatly, except in the age limits of 
liability to service, from the original bill presented to Con- 
gress.^ 

Verdict of the Supreme Court upon its constitutionality. 
Doubts as to the constitutionality of the act had been expressed 
by its opponents during the debates in Congress preceding its 
adoption ; and following its enactment formal suit was brought 
in the federal courts to have it declared unconstitutional. A 
number of separate suits were consolidated, and by being ad- 
vanced on the court dockets they reached the Supreme Court 
of the United States at the opening of the October term in 
1917.- The chief objections raised against the act were that 
the Constitution did not authorize raising armies by com- 
pulsory draft, that there was no constitutional authority for 
sending citizens, especially the militia, to serve on foreign soil, 
and that enforced military service constituted the involuntary 
servitude forbidden by the 13th Amendment. In answer the 
court stated that the denial that the power to raise armies in- 
cluded the power to exact enforced military duty " challenges 
the existence of all power, for a governmental power which has 
no sanction to it and which therefore can only be exercised 
provided the citizen consents to its exertion is in no substantial 
sense a power." " It may not be doubted," said the court, 
"that the very conception of a just government and its duty 
to the citizen includes the reciprocal obligation of the citizen 
to render military service in case of need and the right to com- 

1 The act was subsequently amended so as to include persons be- 
tween the ages of 31 and 45, but in other respects remained un' 
changed. 

2Arver v. U. S., 245 U. S., 366. 



142 POLITICAL SYSTEMS IN TRANSITION 

pel it." The second objection was considered at length, and 
the court made a careful distinction between the armies which 
Congress might raise and the militia whose duties appeared to 
be limited to defense against foreign invasion. Once the 
militia were called into national service any limitations upon 
their use disappeared. Moreover, the 14th Amendment 
" broadened the national scope of the Government under the 
Constitution by causing citizenship of the United States to be 
paramount and dominant instead of being subordinate and de- 
rivative, and therefore operating as it does upon all the powers 
conferred by the Constitution, leaves no possible support for 
the contention made." The objection relating to involuntary 
servitude was dismissed as being " refuted by its mere state- 
ment." In like manner the argument that the exemption from 
military service in the strict sense of members of religious 
sects whose tenets excluded the moral right to engage in war 
amounted to " an establishment of religion," as prohibited by 
the Constitution, was dismissed as unworthy of notice. 

Comparison with the Draft Act of 1863. It is instructive 
to compare the Selective Service Act with the provisions of 
the draft law passed by Congress during the Civil War. The 
act of March 3, 1863, contained a clause permitting persons 
drafted to furnish a substitute or to obtain exemption on pay- 
ment of $300. The constitutionality of the act was never 
passed upon by the Supreme Court of the United States, nor 
by any state court except that of Pennsylvania, which upheld 
the law. But it is more than probable that had a similar law 
been passed in 1917 the features above mentioned would have 
been sufficient to warrant the court in declaring it unconstitu- 
tional. For the two exemptions in favor of those able to raise 
the required sum of money would appear to be in clear viola- 
tion of the 5th Amendment of the Constitution, which requires 
that no person shall be " deprived of life, liberty, or property, 
without due process of law," the phrase " due process of law " 
being now interpreted as including not only the customary 
forms of judicial procedure, but also certain substantive prin- 



EMERGENCY LEGISLATION 143 

ciples of justice, such as equality before the law; so that any 
legislative act of a clearly arbitrary and oppressive character 
would be declared unconstitutional by the court, as being of 
the same practical effect as an arbitrary and oppressive deci- 
sion of the courts themselves. The scandals which attended 
the operation of the draft law of 1863 are one of the dark pages 
of the records of the Civil War. " Bounty-jumpers " in large 
numbers failed to enlist after they had received a bounty to 
do so, and " substitute brokers " handled on a commission basis 
the business of providing substitutes at fixed rates. Accusa- 
tions of dishonesty were frequently made against officers and 
physicians who were in charge of the enlistments. In some 
instances, as in the case of the Democratic enrollment dis- 
tricts of the East-side of New York, the allotments were in 
excess of due quotas, while the law fell heavily upon the for- 
eign-born population of the cities, who were unable to fur- 
nish substitutes or to purchase exemption. By contrast, the 
Selective Service Act was not only rigid in its provisions for 
equality of treatment of all ranks of society by prohibiting the 
payment of bounties or the furnishing of substitutes, but its 
operation was attended with an insignificant number of charges 
of dishonesty on the part of the draft boards which passed upon 
the qualifications of the persons selected. Priority of selection 
from among the entire number of persons drafted was decided 
by lot.^ 

Legislation for the protection of men in the military serv- 
ice. Having provided for the raising of an army adequate to 
the nation's needs, Congress at the same time undertook in a 
variety of ways to provide for the welfare of the enlisted men. 
Section 12 of the Selective Service Act authorized the Presi- 
dent to make regulations governing " the prohibition of alcho- 
holic liquors in or near military camps and to the officers and 
enlisted men of the Army," and it was made unlawful to sell 
any intoxicating liquor to any officer or member of the mili- 

^ The administration of the act by means of local and district boards 
is discussed in a subsequent chapter. Below, p. 211-213, 



144 POLITICAL SYSTEMS IN TRANSITION 

tary forces while in uniform. In pursuance of the authority 
conferred upon the President the Secretary of War estabHshed 
" a zone five miles wide " within which alchoholic liquors 
might not be sold or given by one person to another, cities and 
towns within that area being partially exempted. Section 13 of 
the same act authorized the Secretary of War " to do every- 
thing by him deemed necessary " to suppress houses of ill- 
fame within such distance as he might deem needful of any 
military camp or place of mobilization; and it was made a 
criminal offense to receive any such person into any such house 
for immoral purposes or to permit such person to remain there. 
A subsequent and more stringent amendment to Section 13 
went into further details and made the act itself of engaging 
in prostitution a criminal offense. Section 13 of the Selec- 
tive Service Act was attacked as unconstitutional on the ground 
that it invaded the reserved rights of the States to provide for 
the health and morals of the community, and constituted an 
attempt on the part of Congress to exercise a " police power " 
not granted to it by the Consitution. But the court replied that 
the restrictions imposed by Congress were not imposed in the 
exercise of police power, but in the exercise of the war powers 
of Congress. The power to raise and support an army carries 
with it by implication the power to protect the morals of the sol- 
diers composing the army. Moreover, the Secretary of War, in 
publishing the regulations, was not exercising legislative power, 
but merely giving effect to a law already complete when it left 
the hands of Congress.^ The decision is of importance both as 
showing the extent to which the powers of local self-govern- 
ment reserved to the States by the Constitution had to yield to 
the right of Congress to protect the national forces, and as justi- 
fying the transfer of the penalties normally attending a viola- 
tion of the terms of the law itself to a violation of the admin- 

1 United States v. Casey, 247 Federal Reporter, 362. The same rul- 
ing was later made by the Supreme Court in the case of McKinley v. 
United States, decided April 14, 1919. 



EMERGENCY LEGISLATION 145 

istrative regulations applying the law at the discretion of the 
Executive. 

Scope of the Civil Relief Act. In addition to legislation 
to protect the health and morals of the army, Congress passed 
after considerable delay the Soldiers' and Sailors' Civil Relief 
Act of March 8, 1918, the object of which was to prevent 
prejudice or injury to the civil rights > f persons in the mili- 
tary service of the United States. The law provided that be- 
fore a judgment by default might be obtained the plaintiff 
should file in the court an affidavit showing that the defendant 
was not in military service. Where the defendant was in the 
military service the court was to appoint an attorney to rep- 
resent the defendant and protect his interest, and might re- 
quire as a condition before judgment was entered that the 
plaintiff file a bond to indemnify the defendant against any 
loss he might suffer should the judgment be later set aside. 
Provision was also made that no eviction or distress should 
take place in respect to premises rented for dwelling purposes 
by the wife, children, or other dependents of a person in military 
service, where the rent of the house did not exceed $50 per 
month. Installment contracts were protected by requiring that 
where a person in military service failed to meet his successive 
obligations the right to rescind should not be exercised except 
after action in a court of competent jurisdiction. In like man- 
ner mortgages were protected against foreclosure except with 
the express approval of the court, and insurance policies were 
carried by the Government for the insured by the deposit of 
government bonds with the insurer to be held as security for 
the payment of defaulted premiums with interest after the 
discharge of the person from military service. The provisions 
of laws fixing the conditions of residence, improvements and 
assessments, in establishing claims to mining, homestead, and 
desert land entries on government lands were suspended dur- 
ing the war in favor of persons in military service. ]\Iany of 
these provisions were a serious encroachment upon the powers 



146 POLITICAL SYSTEMS IN TRANSITION 

of the separate States to regulate the legal relations of their 
citizens, and they would, of course, in normal times have been 
entirely beyond the jurisdiction of the Federal Government. 
Their constitutional justification lay in the elastic interpretation 
given to the brief clause, " to raise and support armies." 

The War Risk Insurance Act. The important act by which 
Congress made provision both for the welfare of the families 
of men in military service, and for their own support in 
case of disabhng wounds, did not involve the assumption of 
any new powers by Congress, and might therefore be excluded 
on that ground from our present consideration ; but it marked 
such a radical departure from the policies pursued during and 
after the Civil War and must prove in time to have prevented 
such serious political abuses, that it may be briefly referred to 
in that connection. If the " bounty " system, by which the 
several States made it possible during the Civil War for men 
to enlist who had families dependent upon them, was both hap- 
hazard in its operation and, as we have seen, attended by 
numerous abuses, the pension system by which the Federal 
Government undertook to make provision after the war for 
the wounded and for the families of those who had been killed 
was responsible for political evils of the most serious kind. 
The worst of these arose in connection with private pension 
bills, by means of which representatives log-rolled through Con- 
gress grants of pensions to their constituents who in many 
cases had been justly refused pensions by the administration 
bureau under the general law. An indication of the extent 
of the evil may be gathered from the fact that President Cleve- 
land felt called upon to veto as many as 233 such private 
bills. It is well known that the pension list as it stands to- 
day includes many persons who suffered no physical impair- 
ment in consequence of their period of service and who are in 
no need of financial help from the Government. 

Provisions for allotments, allowances, and compensation. 
Conscious of the abuses attending the existing pension sys- 
tem, and realizing that the magnitude of the new armies about 



EMERGENCY LEGISLATION 147 

to be raised and the democratic basis upon which they were 
being recruited called for a more logical and at the same time 
a more equitable plan of relief, Congress enacted a compre- 
hensive law including both maintenance for the families of the 
men in service and provision for the men tliemselves if wounded, 
or for their families in the event of their death. The War 
Risk Insurance Act of October 6, 1917, in the form of an 
amendment to earlier acts covering marine insurance, is in 
reality one of the most striking developments of social legis- 
lation produced by the war. In the first place the law recog- 
nized the obligation of the enlisted man to contribute in fair 
measure to the support of his wife and children, and insisted 
that he was not to be allowed to evade the obligation merely 
because he was in military service. The Government, there- 
fore, withheld a certain portion of the pay of the enlisted man 
•under the form of a " compulsory allotment " to wife and 
children, and it then met this allotment by a corresponding 
" allowance " varying in amount according to the number of 
children. In the case of dependents other than wife and 
children the man had to prove that he had contributed to their 
support before he entered the service, and had to be ready to 
make a " voluntary allotment " before the Government was will- 
ing to make the fixed " allowance " for such cases.^ In the 
second place the law made automatic " compensation " in case 
of death or disability resulting from injury suffered or disease 
contracted in the line of duty. This part of the law takes 
the place of the old pension system, but with the marked im- 
provement that the compensation is determined in advance and 
there is no room for special pension legislation, except possibly 

1 The allowance of the Government amounted to $15 in the case of 
a wife, $25 in the case of a wife and one child, and so on up to $50; 
to which must be added the corresponding compulsory allotment of 
$15 or more. The amounts, were, of course, not adequate to meet all 
cases, but in view of the heavy burden laid upon the average tax 
payer Congress felt that a minimum sum had to be fixed, and left it 
to State and other organized agencies of relief to provide for special 
cases. 



148 POLITICAL SYSTEMS IN TRANSITION 

in the case of officers who were not adequately provided for. 
Moreover, the amount of the compensation varies in accordance 
with the size of the man's family, and is autornatically in- 
creased in the case of a disabled man who marries and has 
children, thus making it unnecessary for him to appeal to 
Congress for special aid. 

Insurance features of the law. But the most novel feature 
of the law, and the one of most constructive importartce for 
the future, is that which enabled the enlisted man to insure 
himself against death or permanent disability, and thus ob- 
tain an additional income for his family over and above the 
fixed compensation granted by the Government. The idea un- 
derlying the provision for insurance was that Congress recog- 
nized the disadvantage in which the enlisted man was placed 
should he desire to obtain insurance from one of the standard 
companies, whose rates for men in the army were practically 
prohibitive. Insurance was therefore furnished by the War 
Risk Bureau at cost, disregarding the extra-hazardous risks and 
making no charge for the expenses of administration or for 
profits. Provision was also made that after the war the in- 
sured might convert his war policy into one or other of the 
ordinary forms of life insurance, with the Government continu- 
ing in the position of insurer. We thus find the Government, 
now that the war is over, ready to exercise a standing busi- 
ness relationship with as many of the four millions of men as 
choose to avail themselves of the opportunity of obtaining per- 
manent life insurance without medical examination and at 
lower cost than such insurance could be obtained elsewhere. 
The results of the experiment will be watched with much con- 
cern by all those interested in the various forms of social in- 
surance by which it is proposed that the Government shall offer 
protection against sickness, accident, old age, and unemploy- 
ment. Whether in this extension of government functions 
the Federal Government shall encroach further upon the sepa- 
rate state governments is a question yet to be determined ; but 
as things stand at present in respect to the legislative fields as- 



EMERGENCY LEGISLATION 149 

signed to the central and the local governments, the Federal 
Government must limit its activities to the extension of in- 
surance to. the civilian employees of the Government, leaving 
it to the state governments to further the progress of social 
insurance for the public at large. Social insurance will un- 
doubtedly form one of the important problems of construc- 
tive legislation in the future, and there is no doubt but that a 
great impulse has been given to it by the action of Congress 
in passing the War Risk Act. Whether it is wise in normal 
peace times to confer upon the Government such extensive 
functions is, however, a doubtful question in the minds of many 
publicists.^ 

Mobilization of material resources. Second only in impor- 
tance to the problem of raising the new armies provided for by 
the Selective Service Act was the problem, of stimulating the 
production of munitions, food, and fuel ; of directing the trans- 
portation 'wstem of the country so as to facilitate the produc- 
tion and proper distribution of commodities ; and of regulating 
the consumption of raw materials so as to conserve those needed 
to meet the special demands of the army and of war industries. 
In each of these three fields Congress assumed new powers 
denied to it by the Constitution in normal times of peace but 
implied in time of war in the power " to raise and support 
armies." A thorough study of all the legislation adopted by 
Congress and of the administrative agencies created by the 
Executive to regulate production, distribution, and consumption 
in the interest of strengthening the fighting arm of the nation 

1 The hope that so comprehensive and constructive a measure as 
the War Risk Insurance Act would remove the question of remunera- 
tion for services in war from the arena of partisan politics has already 
been defeated in the passage by the House of Representatives of a 
" bonus bill," the obvious purpose of which, in the form in which it 
was first introduced, was to win votes in the coming election. In the 
face of public criticism and of the inability of Congress to find a way 
of raising the large sums necessary to provide the " bonus," the bill 
failed of passage by the Senate before the adjournment of Congress 
on June 5, 1920. 



I50 POLITICAL SYSTEMS IN TRANSITION 

would lead us into a general history of all the activities of the 
war. Our interest here is chiefly in those special laws and 
their administration which mark the extension of the control 
of the Federal Government over the life of the country and 
contain in themselves the seeds of a new development of the 
functions of government in time of peace. We entered the 
war with a Federal Government of limited powers ; we fought 
the war with a Federal Government of almost unlimited 
powers ; now that the war is over shall these new functions of 
the Federal Government be entirely abandoned as belonging 
only to the urgency of war, or shall they be continued in 
modified form in so far as the Constitution permits, and the 
Constitution amended where necessary? 

The production of munitions. The problem of mobilizing 
the industrial resources of the country so as to stimulate the 
production of munitions of war had been partly met before the 
declaration of war in the creation by Congress in 1916 of the 
Council of National Defense. Among the sub-committees ap- 
pointed by the Council were the Munitions Standards Board, 
whose duty it was to cooperate with the War and Navy De- 
partments in determining and adopting standards for the manu- 
facture of munitions of war, and the General Munitions Board, 
whose duty it was to coordinate the buying of munitions by the 
Army and Navy Departments and to assist in obtaining the 
raw materials and the manufacturing facilities necessary for the 
production of munitions. These two committees and other 
lesser ones were subsequently merged into a new War Indus- 
tries Board, which acted as a centralizing agency for the satis- 
faction of the demands of the several branches of the War 
Department, and undertook to reorganize the industrial re- 
sources of the country so as to insure that the requirements of 
the Government would be met as speedily as possible. Acting 
in pursuance of general powers conferred upon the President 
by the National Defense Act of June 3, 1916, the committee 
assumed several quasi-legislative functions, among them being 
the determination of priorities in respect to the production, de- 



EMERGENCY LEGISLATION 151 

livery, and use of materials and supplies, the fixing of prices 
where it was found necessary, and the requiring that wasteful 
methods of production should be eliminated in favor of more 
scientific and economical plans prescribed by the committee.^ 

Control over shipbuilding. The building of ships, like the 
production of munitions, was considerably facilitated by action 
taken prior to the war. On September 7, 191 6, Congress 
passed the Shipping Board Act, the principal object of which 
was to encourage, develop, and create a naval auxiliary and a 
merchant marine to meet the requirements of the commerce of 
the United States. The Board was given powers approximat- 
ing those exercised by the Interstate Commerce Commission and 
the Federal Trade Commission over inland transportation, and 
it was further empowered to have vessels constructed in Ameri- 
can shipyards and elsewhere, and to purchase, lease and charter 
vessels suitable, in so far as commercial requirements might 
permit, for use as naval auxiliaries in time of war. On the 
outbreak of the war the Board organized, under the laws of 
the District of Columbia, a private corporation with a capital 
stock of $50,000,000, under the name of the United States 
Shipping Board Emergency Fleet Corporation, the stock of 
which was subscribed for by the Board, and to which the 
Board delegated its powers in respect to the acquisition and 
operation of vessels. A subsequent act of June 15, 1917, au- 
thorized the President not only to take over any ships under 
construction, but also " to require the owner or occupier of any 
plant in which ships are built or produced to place at the dis- 

^An excellent description of the work of the War Industries Board 
may be found in an article on " War Organization," by W. F. Wil- 
longhby, in the "American Year Book for 1918," and a fuller treat- 
ment in the same writer's "Government Organization in War Time 
and After," which has been freely drawn upon in these paragraphs. 

Mention should also be made, in connection with the production of 
munitions, of the activities of the War Finance Corporation, created 
by act of April 5, 1918, the purpose of which was to advance funds to 
essential industries which might be unable to secure the money needed 
at reasonable rates. 



152 POLITICAL SYSTEMS IN TRANSITION 

posal of the United States the whole or any part of the output 
of such plant," and " to requisition and take over for use or 
operation by the United States any plant, or any part thereof, 
without taking possession of the entire plant." The entire 
shipbuilding resources of the country w^ere thus brought under 
the practical control of the Government. By a still later act 
of July i8, 1918, the President was authorized to operate the 
ships and shipping agencies almost as completely as the rail- 
roads and the telegraph and telephone systems were operated 
under direct government control. Ships already in service were 
requisitioned and in many cases operated by their owners under 
charter from the Emergency Fleet Corporation; while in other 
cases the ships were operated by the Corporation itself through 
a special operating department, and free training and engineer- 
ing schools were established to recruit merchant marine of- 
ficers. 

Control over food products and fuel supplies. If the con- 
trol exercised by the various administrative boards over the 
production of munitions and the building of ships brought a 
large part of the industrial life of the country into direct rela- 
tions with the central government, the extension of the powers 
of Congress and of the President over the food and fuel sup- 
plies of the country brought each and every citizen into close 
touch with the federal agencies established to regulate the pro- 
duction and distribution of those commodities. The problem 
of the food supply was one which bore upon the Government 
chiefly in the interest of meeting the needs of our Allies ; but it 
had direct reactions upon our own people at large in conse- 
quence of the fact that the excessive demand from abroad 
tended to enhance prices and to increase opportunities for 
profiteering by unscrupulous dealers. To meet the problem 
Congress passed the Food Production or " Food Survey " Act, 
approved August 10, 1917, which enlarged the powers of the 
Department of Agriculture in the interest of increasing food 
production through the distribution of seeds, and of eliminat- 
ing waste through the prevention and eradication of plant 



EMERGENCY LEGISLATION 153 

and live stock diseases. On the same day the Food and Fuel 
Control Act was approved, which provided for the establishment 
of a rigid governmental control over the production and dis- 
tribution of foods, fuels, fertilizers, and tools and machinery 
required for the production of foods and fuels. At the same 
time it imposed penalties upon all who should attempt to hoard 
any of the above " necessaries," or to restrict the supply and 
distribution of them. The President was authorized to fix 
the price of wheat, the object being to insure on the one hand 
that farmers should not fear that an unusually large crop would 
result in low prices and on the other hand that the unusual de- 
mand should not unduly raise the price. The political im- 
plications of this attempt to regulate the marketing of this 
vital element among the necessaries of life were interesting as 
showing the pressure brought to bear by the agricultural repre- 
sentation in Congress to have the price fixed when it was 
thought that such action was needed for the farmer's protec- 
tion, and the opposition to price fixing by the same group on a 
later occasion when it appeared that the price would advance 
beyond that determined upon by the Government. 

Prohibition legislation under guise of food conservation. 
A further political feature of the act was the presence of a 
rider prohibiting the use of foods, fruits, or food materials 
in the production of distilled spirits for beverage purposes. 
The prohibition was absolute and allowed the President no 
discretion as to whether there was need for such a restriction. 
At the same time an entirely irrelevant provision was intro- 
duced forbidding the importation into the United States of 
any distilled liquors. In the case of food materials used in the 
production of beers and wines, the President was authorized 
to apply restrictions according to the need for conservation. 
The authority thus granted was not exercised by the President, 
since it did not appear to the Food Administrator that the short- 
age of food was so great as to call for the restriction. More 
drastic legislation against intoxicating liquors was contained in 
a rider to the Food Stimulation Act (Emergency Agricultural 



154 POLITICAL SYSTEMS IN TRANSITION 

Appropriation Act) of November 21, 1918, which extended the 
prohibition of the use of foodstuffs to the production of beer, 
wine, or other intoxicating malt or vinous liquors after May 
I, 1919, and until the end of demobilization. At the same time 
the sale of such liquors was prohibited after June 30, 1919, until 
the end of demobilization. The striking feature of this pro- 
hibition rider, known separately as the War-time Prohibition 
Act, is the fact that it was passed ten days after the armistice 
had been signed, when the cessation of the losses due to sub- 
marine warfare and the probability that relief would come to 
Europe before the law would come into effect made the neces- 
sity of the legislation as a food conservation measure much 
less apparent. Moreover, there was no connection between the 
prohibition of the sale of intoxicating liquors and the stimula- 
tion of food production, since the manufacture of such liquors 
had already been forbidden by the Food and Fuel Control Act, 
and such sales as might take place could only be from stocks 
on hand. The evidence all pointed to the determination of the 
forces in Congress favoring prohibition to make use of every 
opportunity to secure temporary legislation pending the adop- 
tion of the amendment to the Federal Constitution then awaiting 
ratification by the States, To have based the prohibition rider 
squarely upon the need of conserving the industrial man- 
power of the nation, and to have attempted to pass it as a 
distinct measure to be judged on its own merits, would doubt- 
less under the circumstances have been to invite defeat. 

Constitutionality of the War-time Prohibition Act. The 
constitutionality of the War-time Prohibition Act was con- 
tested upon several grounds, and a decision was handed down 
by the Supreme Court of the United States on November 15, 
1919, which incidentally discussed a number of important ques- 
tions relating to the war powers of Congress.^ In the first 
place the court disregarded the lack of connection between the 
prohibition rider and the conservation of food, and accepted 

1 Hamilton v. Kentucky Distilleries and Warehouse Company, de- 
cided December 15, 1919. 



EMERGENCY LEGISLATION 155 

without questioning a justification of the act based upon the 
general ground that it tended to guard and promote the effi- 
ciency of arm}' and navy and of the workers engaged in the 
manufacture of munitions and suppHes. At the same time the 
principle was reaffirmed that the court may not " pass upon the 
necessity for the exercise of a power possessed, since the pos- 
sible abuse of a power is not an argument against its exist- 
ence." In the second place the court found no violation of the 
" due process of law " clause of the 5th Amendment in the 
failure of the government to make compensation for the losses 
resulting from the restrictions imposed, since these losses were 
not the result of a direct appropriation of private property for 
public purposes, but were incidental to the exercise of a valid 
constitutional power. 

But the most important question raised by the case relates to 
th" extension of the war powers of Congress into the post-war 
period. On the one hand it was contended that at the time the 
suit was brought it was evident that hostilities would not be 
resumed, that demobilization had been effected, and that the 
war emergency was thereby removed, and the law was in con- 
sequence void. In proof of this, statements of the President 
were adduced to the effect that the war had ended (address to 
Congress, November 11, 1918) and peace had come (Thanks- 
giving Proclamation, November 18, 1918) ; and it was shown 
that many war-time activities had been suspended, and that 
trade with Germany had been resumed. But as against these 
allegations the court pointed out that Congress had on October 
28, 1919, made further provision for the administration of the 
very law in question, and had thus treated the war as continu- 
ing and demobilization as incomplete. Moreover, the Senate 
had but recently refused to ratify the treaty of peace with 
Germany, the provisions of the Lever Act were still being 
enforced in respect to the control of the fuel supply, the rail- 
roads were still being operated by the President, and modi- 
fied control over food supplies was still in effect. In con- 
clusion, the court, while " assuming that the impHed power 



156 POLITICAL SYSTEMS IN TRANSITION 

to enact such a prohibition must depend not upon the existence 
of a technical state of war, terminable only with the ratifi- 
cation of a treaty of peace or a proclamation of peace, but upon 
some actual emergency or necessity arising out of the war or 
incident to it," nevertheless refused to consider that the power 
based upon this emergency was limited to the period of actual 
fighting. " It carries with it," said the court, quoting from a 
Civil War case, " inherently the power to guard against the 
renewal of the conflict and to remedy the evils which have 
arisen from its rise and progress." 

Constitutionality of the Volstead Act. The final stage in 
the enactment of prohibition legislation in pursuance of the war 
powers of Congress was reached in the Volstead or National 
Prohibition Act, which was passed over the President's veto, 
on October 28, 1919. This measure, besides making provision 
for the enforcement of the i8th Amendment which had been 
ratified since the passage of the War-time Prohibition Act, in- 
terpreted the words " beer, wine or other intoxicating malt or 
vinous liquors " in the earlier act as meaning any such bev- 
erages which contained one-half of one per centum or more of 
alcohol by volume. The constitutionality of the law was im- 
mediately contested upon grounds similar to those raised in 
the case of the War-time Prohibition Act. But the Supreme 
Court overruled the objections taken and upheld the law on 
the ground that the implied war power of Congress over in- 
toxicating liquors extended to the enactment of a law which 
would effectively prevent their sale, even though the standard 
of alcoholic content fixed by the law was below what was 
actually intoxicating.^ 
Activities of the Food Administration. In pursuance of 

1 Ruppert V. Cafifey, decided January 5, 1920. The constitutionality 
of the Volstead Act as an exercise of the power of Congress to enforce 
the provisions of the i8th Amendment was upheld in a later decision, 
handed down on June 7, 1920. See below, p. 265. The difficulties 
which the War-time Prohibition Act and the National Prohibition Act 
created for the administrati\e departments of the several States will 
be referred to in the following chapter. 



EMERGENCY LEGISLATION 157 

the powers granted him by the Food and Fuel Control Act the 
President appointed a separate administrative body, known as 
the LTnited States Food Administration, to carry out the provi- 
sions of the act. The activities of this body are familiar to all, 
and our only interest here is noting the political significance of 
the methods followed by it. As far as possible the Food Ad- 
ministration attempted to attain its objects by securing the 
voluntary cooperation of the public and of business interests in- 
volved. An appeal was made to all to become " members " of 
the Food Administration, and thus to obligate themselves to 
follow the rules laid down by the Food Administrator for the 
purpose of conserving supplies. But no attempt was made, 
as in Great Britain, to make the wasting of food a criminal of- 
fense or to put the people upon fixed rations. A degree of 
pressure was subsequently brought to bear upon the public 
in indirect ways ; and efforts were made to prevent profiteering 
by a system of licencing dealers and penalizing them by the 
withdrawal of their licences in case they failed to observe the 
regulations of the Food Administration. The Administration 
had no power to fix prices except in the case of wheat, but 
" fair price lists " were posted by local boards, which tended 
at least to prevent discrimination and excessive over-charging.^ 
Advantages of voluntary agencies. Can it be said that 
the voluntary system was more of a success in the United 
States than in Great Britain where it was tried and in part 
abandoned after it had proved ineffective? It would be diffi- 
cult to make a fair comparison under such dissimilar circum- 
stances. But while it can be said that surprisingly good results 
were obtained from the voluntary system in the United States, 
there is little doubt but that much waste continued in spite 
of it.^ Had there ever been such shortage of food in the 
United States as in Gre.it Britain it is certain that a ration- 

1 Further details of the activities of the Food Administration may be 
found in Lippincott. " Problems of Reconstruction," Chap. II. 

2 The requirement that an equal quantity of the more abundant 
foods sho!ild be bought for each pound of wheat flour and sugar was 
generally admitted to have led directl> to wastage. 



158 POLITICAL SYSTEMS IN TRANSITION 

ing system would have been demanded. But under the con- 
ditions with which the United States was faced, the voluntary 
system not only accomplished its purpose but proved to be a 
most valuable lesson in community cooperation and practical 
democracy. A people unaccustomed to governmental regula- 
tion of their domestic habits responded to the appeal with far 
less reluctance than would probably have been the case had 
compulsion been put upon them. One of the great problems 
facing democracy in the future is the increasing necessity of 
regulating a wide variety of the activities of daily life which 
have hitherto been left to individual initiative. How this can 
be accomplished without at the same time bringing law itself 
into disrepute by the very multiplicity of its provisions and the 
impossibility of securing their enforcement is a difficulty which 
may prove insuperable unless resort be had to methods of 
control similar to those adopted by the Food Administration. 
Compulsory agencies may prove more effective in time of war 
when immediate results must be obtained and when the impera- 
tive demands of national safety make it necessary to disregard 
the question of moral gain or loss ; but as between compulsory 
and voluntary agencies as a permanent system there can be 
but little hesitation in choosing the latter wherever they offer 
a fair promise that the minimum needs of the situation will 
be met. 

Activities of the Fuel Administration. The powers 
granted to the United States Fuel Administration, created by 
the President under the authority of the Food and Fuel Control 
Act, were similar to those granted to the Food Administration. 
The same policy of combining compulsory orders with an ap- 
peal to voluntary cooperation was likewise resorted to. Ap- 
peals were made both to the operators and to the mine workers 
to increase their output; prices of coal were fixed for each 
stage of its handling from mine to consumer ; restrictions were 
placed upon the use of coal for less necessary purposes, such 
as the illumination of sign-boards and shop-windows; trans- 



EMERGENCY LEGISLATION 159 

portation was regulated so as to avoid unnecessary cross-hauls; 
and as a last emergency all factories east of the Mississippi 
not engaged in war work were closed on Mondays for a period 
of two months. Restrictions were likewise placed upon the 
use of fuel oil and of gasoline, and the public was called upon 
to impose upon itself a self-denying ordinance prohibiting the 
use of automobiles on Sunday. Those who are inclined to be 
sceptical of the force of public opinion to secure the observance 
of rules to which no penalty is attached may study with profit 
the records of the Sundays of the fall of 1917. At the same 
time it cannot be denied that hardship and iuequalitv attached 
to a rule which permitted the use of gasoline without restriction 
for purposes of pleasure on week-days and prohibited even its 
limited use on Sunday for the same purpose. In normal times 
it would be necessary to frame a more logical rule.^ 

Government operation of the railways. The most striking 
extension of the functions of the Federal Government during 
the war was exhibited in connection with the assumption of 
control over the railway system. Upon the outbreak of war 
steps were immediately taken to place the entire facilities and 
personnel of the railroads of the country at the disposal of the 
Government; and at the same time it was recognized as im- 
perative that the separate railway systems would have to be 
coordinated and operated as a unit if the most effective service 
was to be obtained. An attempt was made at first to secure 
this unity of operation through the action of the several com- 
panies themselves, and a committee known as the " Railroads' 
War Board " was appointed by the American Railway Associa- 
tion to secure the desired cooperation. The failure of this 
committee to furnish the service required of the railroads was 
not due to faults of management on its part, but to the inherent 
weakness of the financial basis upon which the separate units 
of the system had been built up. Money was needed to meet 
the demand for increased wages and the more pressing need 
1 For further details, see Lippincott, op. cit., Chap. III. 



i6o POLITICAL SYSTEMS IN TRANSITION 

of maintenance and repair ; and in the absence of a response 
from the investment market it became necessary for the Gov- 
ernment either to permit sharp advances in freight rates and 
to make loans to the railroads or else itself to take over the 
administration of the railways during the war. The latter al- 
ternative was adopted, and on December 26, 1917, the President 
announced that, in pursuance of authority from Congress 
granted in an army appropriation act of 1916, the Government 
would assume control of the railroads of the country and of 
the system of water transportation. 

The bargain between the Government and the railways. 
The conditions under which the railways were to be operated 
by the Government were laid down in the act of Alarch 21, 
1918, entitled, " An Act to provide for the operation of trans- 
portation systems while under Federal control, for the just 
compensation of their owners, and for other purposes." Cer- 
tain features of the act which are of special political signifi- 
cance as bearing upon the problem of the relinquishment of 
government control after the war may be briefly mentioned. 
With respect to the protection of railway investments, the 
President had promised at the time of taking over the roads 
that investors in railway securities might rest assured that their 
interests would be looked after by the Government as scrupu- 
lously as by the directors of the railway systems themselves. 
In fulfillment of this promise the act of Congress made pro- 
vision that every line taken over should be guaranteed an in- 
come equal to the average annual operating income earned 
during the three years preceding June 30, 1917. At the same 
time provision was made for maintenance, repair, renewals, 
and depreciation, with the object of enabling the Government to 
return to each railroad its property in " substantially as good 
repair and in substantially as complete equipment as it was at 
the beginning of federal control." A Revolving Fund was 
created by a first appropriation of $500,000,000, in order to 
pay the expenses of federal control and at the same time to 
insure proper compensation to the railways and to make ad- 



EMERGENCY LEGISLATION i6i 

varices to them for extensions, betterments, and new equip- 
ment, additional compensation being allowed to the railroads 
for such capital expenditures and provision being made for re- 
imbursing the Government for such additions and betterments 
as were not properly chargable to it.^ With respect to the 
period of federal control, the act provided that the railroads 
were to be returned to their owners not later than twenty- 
one months after the ratification of the treaty of peace; but 
the President was empowered to relinquish control at any time 
that he might deem such action needful or desirable. Efforts 
of the Director General to have Congress grant an extension of 
federal control for a period of five years after the war, within 
which time the value of government control might be tested, 
were unavailing. In December 1919, the President, without 
waiting for the time limit to elapse, announced that the rail- 
roads would be returned to their owners on March i, 1920.^ 
Government operation of telegraph and telephone lines. 
The assumption by the Federal Government of control over 
the telegraph, telephone, and cable systems of the country was 
due not to the need of obtaining centraHzed operation, as in the 
case of the railways, but to the necessity of guarding more care- 
fully the secrecy of communications, and particularly to the 
necessity of anticipating threatened labor troubles and thus 
securing the uninterrupted service required for the administra- 
tion of war activities. Following the refusal to the Western 
Union Telegraph Company to submit to a decision of the 
National War Labor Board in a dispute arising out of the 
right of the employees to organize as a union, Congress adopted 
on July 5, 1918, a resolution authorizing the President to take 
over the several systems and operate them " during the continu- 
ance of the present war," subject to the same conditions of 

^ The difficulties which these provisions gave rise to and the ob- 
stacles which they presented to the return of the railroads to their 
owners will be considered in a subsequent chapter. 

2 The various proposed solutions for the reorganization of the rail- 
way systems will be discussed in a later chapter in connection with 
the general program of economic reconstruuction. 



i62 POLITICAL SYSTEMS IN TRANSITION 

law in force in regard to the steam railroads while under 
federal control. Considerable opposition to the resolution was 
offered by congressmen who held that no good reason had been 
given for the assumption of control by the Government, and 
who suspected that the desire of the administration to take over 
the lines was due to an intention to make such action the first 
step towards ultimate government ownership and operation. 
The telegraph and telephone lines were taken over by the 
Government on August i, 1918; but action was delayed in the 
matter of the marine cable systems until a proclamation of 
November 2, taking effect November 16, when the armistice 
had been signed and the war was practically at an end. The 
reason assigned by the Postmaster-General was the urgent need 
of the Government to control the lines " during the period 
of readjustment." After an admmistration of the three sys- 
tems by the Postmaster-General which gave general dissatis- 
faction both in regard to service and in regard to the adjust- 
ment of labor difficulties, the lines were returned to their 
owners on August i, 1919. Many former advocates of gov- 
ernment ownership were frank in expressing a change of 
views as to its desirability in consequence of the experience 
of temporary government control. 

War industries and the problem of labor. Interwoven 
with the problem of government control over essential war 
industries and over the means of transportation and communi- 
cation, and in some cases dictating the assumption of control 
by the Government, was the question of mobilizing the labor 
forces of the country. We have seen how the problem of 
supplying the man power necessary to constitute an effective 
force was met by abandoning the system of voluntary enlistment 
in favor of general conscription within fixed age limits. 
Why was not the same compulsory system adopted in the case 
of the workers in munition factories and other essential in- 
dustries? Compulsion was applied, where necessary, to the 
owners of factories, of shipyards, of mines, of the railways, 
telegraphs, and telephones, and other industrial establishments 



il 



EMERGENCY LEGISLATION 163 

and agencies. Why should it not have been applied to the em- 
ployees as well, by constituting them as it were an industrial 
army sworn to render the full measure of service required 
of men drafted into the fighting forces? The question may 
be debated as a theoretical proposition, but as a practical matter 
it was found more expedient by the Government to have re- 
course to voluntary methods of control. In so doing it can- 
not be said that the Government met with a full measure of 
success. But the difficulties encountered were of a character 
to which hard and fast solutions could not be applied; and 
in many instances the Government was but paying the price 
of the inherent weakness of a labor system in which the 
conditions of living and the wages paid were based not upon 
abstract standards of justice, but upon the law of supply and 
. demand. 

Government agencies for the settlement of disputes. The 

principal difficulty arose in connection with disputes between 
employers and employees with regard to the scale of wages. 
Further difficulties arose in connection with living conditions 
among the workers engaged in mushroom war industries ; and 
here the Government endeavored to meet the causes of dis- 
content by determining standard conditions of labor and seek- 
ing to secure their adoption by the employers, and in some 
cases by assisting the employers with elaborate plans for hous- 
ing and other accommodations. At the outbreak of the war 
the Government found itself in the possession of two distinct 
agencies for the adjustment of labor difficulties. The New- 
lands Act of 1913 had provided a Board of Mediation and Con- 
ciliation which was to exercise the functions indicated by its 
name in disputes between interstate commerce carriers and 
their employees. No binding character attached to the awards 
of the Board ; but it had been successful in a large number of 
cases in the settlement of labor disputes in connection with 
the railways. Secondly, there was the Division of Conciliation 
of the Department of Labor, established by the Secretary of 
Labor under the general powers conferred upon the Depart- 



i64 POLITICAL SYSTEMS IN TRANSITION 

ment when created in 1913. This body also could only offer its 
services to the disputants, and had no power to compel a hear- 
ing or to render binding awards. In addition to these bodies 
the Advisory Committee of the Council of National Defense 
had formed a Committee on Labor, of which Mr. Gompers, 
president of the American Federation of Labor, was a member. 
After obtaining the support of the representatives of organized 
labor, Mr. Gompers called a conference of employers, labor 
leaders, and other public men, which was then organized as the 
full Committee on Labor of the Council of National Defense. 
This committee appointed an executive committee of eleven 
members to act for it ; and it was upon the appeal of this 
executive committee, speaking through the Council of National 
Defense, that a " truce " was entered into between capital and 
labor. This truce marked the basic relations between the two 
bodies during the period of the war. The chief conditions of 
this truce were that " neither employers nor employees shall 
endeavor to take advantage of the country's necessities to change 
existing standards," and that neither strikes nor lockouts should 
take place without resort being first had to the established 
agencies of the Federal and State Governments for the settle- 
ment of disputes. 

The President's Mediation Commission. Further steps, 
however, were found necessary to meet particular emergencies. 
Radical leaders among the workers in a number of industries 
in the West took advantage of the crisis of the war to spread 
the doctrines of the I. W. W., and to increase discontent with 
existing political institutions by contrasting the normal indiffer- 
ence of the Government to the needs of labor with the new 
appeal now that labor was vital to the safety of the country. 
To offset this propaganda the President appointed a commission, 
known as the President's Alediation Commission, to investi- 
gate the causes of discontent among the radical elements ; with 
the result that not only were a number of important disputes 
satisfactorily adjusted but steps were taken to put the relations 
between labor and capital on a new and more stable basis. 



EMERGENCY LEGISLATION 165 

A valuable report was presented by the committee, in which 
the causes of industrial discontent were analyzed and recom- 
mendations were made for their correction. 

The Government as an employer of labor. Again, it was 
found possible for the Government to make good in part its 
inability to fix by legislation general standards of labor, by 
imposing such standards upon contractors engaged in furnish- 
ing army clothing. The scope of this control over manufac- 
tures was not, of course, either extensive or permanent, but the 
action taken is of interest as showing how the Government in its 
capacity as employer may exercise an indirect control over a 
limited number of industries, and may set standards to which 
other industries will be gradually led to conform. For many 
years there have been laws fixing the conditions of labor in 
private industries furnishing the Government with supplies ; 
hours of labor fixed by the Government have been imposed upon 
contractors engaged in work for the Government ; and in certain 
instances wage standards have been imposed. When we add 
to this the example which the Government has set in the work- 
shops, arsenals, and navy yards under its direct control, it will 
be seen that the influence of the Federal Government as an em- 
ployer among other employers has been of no little value in 
improving industrial standards. The same is true of many 
of the separate state governments in their capacity as em- 
ployers of labor ; although in their case they have always pos- 
sessed the authority, had they believed it proper to exercise 
it, to impose those standards upon private manufacturers. 

Boards to adjust disputes and to determine policies. In 
January, 1918, an efiFort was made to unify the various 
agencies dealing with war labor by the creation of a central 
labor administration with the Secretary of Labor as Labor 
Administrator. An Advisory Council was then appointed to 
assist the Secretary in fixing standards and determining policies. 
In addition a larger War Labor Conference Board was created, 
consisting of representatives of both employers and employees. 
The program drawn up by this body was adopted by the Gov- 



i66 POLITICAL SYSTEMS IN TRANSITION 

ernment and applied to the settlement of labor problems during 
the rest of the vvar.^ Among other things the program recom- 
mended the appointment of a National War Labor Board, 
similar in membership to the War Labor Conference Board, 
the purpose of which was to carry out the policy advocated 
for the adjustment of labor disputes. The Board, acting under 
the joint chairmanship of ex-President Taft and Frank P. 
Walsh, was successful in settling a number of labor disputes. 
Its functions did not, however, extend to the determination of 
policies ; and this need was later met by the creation of a War 
Labor Policies Board, representative of all branches of the 
Government service that were large employers of labor. This 
body undertook to determine standard conditions of employ- 
ment which should be observed both by government agencies 
and in the war industries of the country ; but before its elabor- 
ate program for the standardization of wages and hours of 
labor could be worked out in detail and put into general effect 
the war came to a close.^ Lastly, mention must be made of 
the United States Employment Service, established under the 
Department of Labor for the purpose of recruiting war labor 
and directing it into the channels where it was most needed. 
Upon the recommendation of the War Labor Policies Board 
the President issued an appeal calling upon employers to have 
recourse to the Employment Service in recruiting unskilled 
labor, and upon employees to answer the call of the Service 
for voluntary enlistment in essential industries. Here again, 
the war came to an end before the full effect of the methods 
introduced by the Employment Service could be tested in 
actual practice. 

Absence of compulsion from control over labor. The 
measures adopted by the Government for the control of labor 
during the war were thus all lacking in the compulsory char- 

1 The text of the program may be found in W. F. Willoughby, 
" Government Organization in War Time and After," p. 22-7. 

2 The program announced by the Board may be found in W. F. 
Willoughby, op. cit., p. 241, and in Official Bulletin, July 25, 1919. 



EMERGENCY LEGISLATION 167 

acter of legislative enactments. In this instance the United 
States did not follow the example of Great Britain even to 
the extent of providing for the compulsory arbitration of dis- 
putes in war industries. In indirect ways, however, pressure 
was brought to bear both upon employers and upon employees. 
In the instance of a strike at Springfield, Mass., the refusal 
of the employers to abide by the decision of the War Labor 
Board was followed by the commandeering of their plant. In 
another instance employees who refused to abide by the Board's 
decision were threatened with being barred from employment in 
war industries in their community and with being refused de- 
ferred classification in the selective draft, with the result that 
they voted to return to work. It cannot be said, however, 
that the voluntary measures adopted by the Government were 
wholly successful, whether or not coercive measures would have 
been more so. Serious strikes took place in the shipbuilding 
yards, and it was only after considerable delay and disorganiza- 
tion in their work that the strikers yielded to the decision of 
the Adjustment Board. Considered as an abstract proposition, 
there is no reason, as has been said above, why compulsion 
should not be applied to workers in essential war industries 
as well as to the men in the army for whom the munitions 
are being made. The principle of compulsory arbitration pre- 
sents in time of peace both constitutional and practical objec- 
tions as applied to industries other than public service corpora- 
tions and possibly those industries engaged in producing the 
necessaries of life ; but there would seem to be no logical ground 
for opposing its enforcement in time of war, although con- 
siderations of expediency may dictate resort to voluntary 
methods. No more striking lesson has been taught by the 
recent war than that the old distinction between combatant and 
non-combatant forces rested upon conditions utterly different 
from those of the present generation, in which mechanical con- 
trivancies, manufactured by non-combatant civilians, were in 
some respects more important than man-power. And if the 
distinction be invalid in international law, it is equally invalid 



i68 POLITICAL SYSTEMS IN TRANSITION 

in domestic constitutional law. In defining the " militia " as 
consisting of " every able-bodied citizen " between the ages of 
eighteen and forty-five, the laws of Congress already point the 
way to an extension of the conception of national duty in 
time of war. 

Legislation to prevent interference with the conduct of 
the war. We may now pass from the survey of the laws 
of a positive character passed by Congress to meet the ex- 
igencies of the war, and of the extensions of executive power 
based upon those and other existing laws, to a consideration 
of the prohibitory laws passed with the object of preventing 
interference with the conduct of the war. It was pointed out 
above ^ that it is sounder constitutional law to justify the ex- 
tensive powers assumed by Congress during the course of the 
war upon the clause of the Constitution giving Congress the 
power " to raise and support armies " rather than upon any 
implied powers possessed by Congress as the legislature of a 
sovereign state. This construction leaves the other clauses of 
the Constitution intact except where they must be subordin- 
ated to the power " to raise and support armies." In conse- 
quence, while conceding to the Government the fullest power 
necessary to bring all the forces of the nation to bear upon the 
defeat of the enemy, it may be held that this power had to be 
exercised with consideration for those other provisions of the 
Constitution which place restraints upon the acts of the Gov- 
ernment in the interest of protecting the rights of the individ- 
ual citizen. The " war powers " have, indeed, a position of 
precedence over other clauses of the Constitution, but the 
latter are still in force except in so far as they have been called 
upon to yield to the emergency. 

The Espionage Act. The most important of the prohibi- 
tory laws passed by Congress were the Espionage Act of June 
15, 1917, and its supplement, the Sedition Act of May 16, 
1918. No measures passed by Congress to meet the needs of 
the war were the occasion of sharper differences of opinion 

ip. 119. 



EMERGENCY LEGISLATION 169 

at the time of their passage or met with more opposition subse- 
quently than these ; and at present writing agitation is still 
being carried on for the purpose of securing the release of 
persons imprisoned for acts in violation of their provisions. 
The features of the two acts which were the chief object of 
attack were those which placed restrictions upon freedom of 
speech and of the press and indirectly upon the right of public 
assembly, and those which granted authority to the Postmaster 
General to deny the use of the mails to objectionable publica- 
tions. The issues involved in these provisions are obviously 
of vital importance to the future of democratic government, 
and it will be seen that many of the attacks made upon the 
restrictive features of the two acts were and are still directed 
not so much against the alleged necessity of such measures 
of protection in time of war, as against the introduction of a 
principle of government control which might serve as a danger- 
ous precedent in the future times of peace. Students of Amer- 
ican history will recall the bitter contest evoked by the passage 
of the Sedition Act of 1798, when the party in power en- 
deavored to protect itself against criticism by a law providing 
a fine and imprisonment for the act of " combining " to oppose 
measures of the Government, and for " any false, scandalous, 
or malicious writing " against the Government or against its 
high officials with the intent " to bring them into disrepute." 
At the present day, now that the special needs of the war 
have been met, the issue is not that of one political party at- 
tempting to suppress another, but that of the conservative ele- 
ments of both the leading parties attempting to put a check 
upon radical agitators who are seeking to bring about a funda- 
mental change in existing political institutions. 

Restrictions upon freedom of speech and of the press. 
Omitting for the moment those features of the Espionage Act 
which do not bear upon restrictions upon freedom of speech 
or of the press, title I, section 3 of the act made it a penal 
offense to " wilfully make or convey false statements with 
intent to interfere with the operations or success of the United 



lyo POLITICAL SYSTEMS IN TRANSITION 

States or to promote the success of its enemies," or to " wil- 
fully cause or attempt to cause insubordination, disloyalty, 
mutiny, or refusal of duty in the military or naval forces of 
the United States," or to " wilfully obstruct the recruiting or 
enlistment service of the United States." Title VIII of the 
act forbids the " disturbance " of the foreign relations of the 
United States by false statements, misrepresentation, and con- 
spiracy to injure or destroy specific property situated in a 
foreign country with which the United States is at peace. 
Title XII prohibits the use of the mails to all publications 
(including letters) violating any of the provisions of the act, 
as well as to all publications containing any matter advocating 
or urging treason, insurrection, or forcible resistance to any 
law of the United States. During the passage of the act an 
effort was made, at the request of the Administration, to have 
it include a press censorship clause punishing persons who, 
in violation of regulations prescribed by the President, should 
publish information relative to the public defense calculated 
to be of use to the enemy. But the proposed provision met 
with such opposition both in Congress and from the press it- 
self that in spite of the statement of the President that the 
censorship provision was " absolutely necessary to the public 
safety " it was finally eliminated from the bill. A very limited 
form of censorship was, however, adopted in the provisions 
above mentioned making publications of a certain character 
non-mailable. At the same time a sort of voluntary censor- 
ship was adopted by the press, by which news of a kind that 
would be of obvious value to the enemy was excluded, and 
news of a doubtful character was submitted to the Committee 
on Public Information before publication. 

The Sedition Act. The amendment to the Espionage Act, 
approved May i6, 1918, known as the Sedition Act, met with 
even greater opposition both within and without Congress. 
It consisted in an extension of title I, section 3 of the original 
act so as to make it a penal offense to make false statements 
with intent to obstruct the sale of Liberty Bonds, and particu- 



EMERGENCY LEGISLATION 171 

larly to " wilfully utter, print, write or publish any disloyal, 
scurrilous, or abusive language about the form of government 
of the United States," or about the national flag or the uniform 
of the army or navy, or language calculated to bring the form 
of government or flag or uniform of the army or navy of the 
United States into disrepute. Language or publications in- 
tended to encourage resistance to the United States or to pro- 
mote the cause of its enemies or to bring about a curtailment 
of the production of materials necessary to the prosecution 
of the war is likewise penalized. During the progress of the 
act through Congress an amendment was urged providing that 
" nothing in this act shall be construed as limiting the liberty 
or impairing the right of any individual to publish or speak 
what is true, with good motives and for justifiable ends " ; 
but it was pointed out by opponents that this would place too 
heavy a burden upon the prosecution, and that it would give 
every offender an opportunity to explain his views to the court 
in detail and justify himself by the plea of good motives. 
The constitutionality of the measure was also attacked, and 
one senator went so far as to say that the bill was designed 
to prevent a man " from expressing legitimate criticism con- 
cerning the present Government." 

Constitutionality of the acts. The constitutional issue 
raised by the Espionage Act in its original and amended forms 
turns upon the guarantee of freedom of speech and of the press 
contained in the ist Amendment to the Federal Constitution. 
Is the guarantee there given absolute or conditional? If abso- 
lute, no conditions of emergency could justify placing restric- 
tions upon it. But this has never been the interpretation put 
by the courts upon freedom of speech. Just as under the laws 
of the separate States similar constitutional guarantees are en- 
joyed subject to the common law relating to slander and libel, 
so the guarantee of the Federal Constitution is subject even in 
time of peace to such restraints as are necessary to protect 
the rights of the community at large and such as are necessary 
to maintain the efficient administration of justice in the face 



172 POLITICAL SYSTEMS IN TRANSITION 

of statements in contempt of court. ^ And if in time of peace 
restraints may be imposed, much more so may they be imposed 
in time of war when the safety of the state is at stake. As 
the danger to the pubhc from false and inflammatory state- 
ments becomes greater, the power of the court to restrict them 
becomes proportionately enlarged. In the first case before the 
Supreme Court of the United States arising out of a violation 
of the Espionage Act, Justice Holmes framed the issue as 
follows : " The question in every case is whether the words 
used are used in such circumstances and are of such a nature 
as to create a clear and present danger that they will bring 
about the substantive evils that Congress has a right to prevent. 
It is a question of proximity and degree. When a nation is 
at war many things that might be said in time of peace are 
such -a hindrance to its effort that their utterance will not be 
endured so long as men fight, and that no court could regard 
them as protected by any constitutional right." ^ In a subse- 
quent case the court again lays stress upon the conditions under 
which the statements in question were made, and while con- 
demning the defendant on the record before the court it went 
so far as to say that " it may be that all this might be said 

1 In the case of Toledo Newspaper Company v. United States (247 
U. S., 402) the court, in justifying the power of the courts to punish 
a newspaper for statements intended to provoke public resistance to 
an injunction, spoke as follows: "The safeguarding and fructifica- 
tion of free and constitutional institutions is the very basis and main- 
stay upon which the freedom of the press rests, and that freedom, 
therefore, does not and cannot be held to include the right virtually to 
destroy such institutions. It suffices to say that, however complete is 
the right of the press to state public things and discuss them, that 
right, as every other right enjoyed in human society, is subject to the 
restraints which separate right from wrongdoing." 

2 Schenck v. United States, 249 U. S., 47. It is of interest in this 
case that the circular which the defendant was instrumental in dis- 
tributing, while denouncing conscription in impassioned terms and 
vigorously urging opposition to the selective draft, confined itself in 
outward form to peaceful means of action, such as petition for the 
repeal of the act. The court, however, judged the circular by its nat- 
ural effect to encourage direct resistance to the law. 



EMERGENCY LEGISLATION 173 

or written even in time of war in circumstances that would 
not make it a crime. We do not lose our right to condemn 
either measures or men because the country is at war." ^ A 
further case decided at the same time, and involving a prom- 
inent Socialist leader, held that it was no justification of a 
public speech, so expressed that its natural and intended effect 
was to obstruct the enlistment service, to assert that it dealt 
with the general theme of Socialism and was part of a general 
program to obstruct war and expressed a general and conscien- 
tious belief.^ 

Political justification of the Sedition Act. The scope of 
the Sedition Act was far wider than that of the original 
Espionage Act in respect to its restraints upon freedom of 
speech. It was one thing to prohibit statements intended to 
interfere with the success of the military or naval forces of 
the United States, or intended to cause insubordination or to 
obstruct the enlistment service of the United States, but a much 
more serious step to penalize " abusive language about the 
form of government of the United States." At first sight it 
seemed to some persons as if the obnoxious Sedition Act of 
1798 was again upon the books. But a fair examination of 
the clause just quoted will show that it was intended not to 
repress criticism of the administration in office, whether of 
the President or of any lesser official, with respect to the con- 
duct of the war. Its object was rather to suppress attacks 
upon American governmental institutions as a whole, where 
the effects of such attacks might be to undermine the morale 
of the people at a time when it was of the utmost importance 
to present a united front to the enemy. The assumption of the 
law was that American political institutions, whatever the 
character of tlie existing administration, were in themselves 
sound and offered adequate means of reform in accordance 
with prescribed methods ; so that to attack the American form 
of government was to undermine the foundations of the national 

1 Frohwerk v. United States, 249 U. S., 204. 

2 Debs V, United States, 249 U. S., 211, 



174 POLITICAL SYSTEMS IN TRANSITION 

life. In time of war when great sacrifices are being demanded 
and the fullest cooperation is essential to success, it is clear 
that an attack upon the political faith of the nation by a minor- 
ity opposed to the policies adopted by the Government, what- 
ever the alleged sincerity of its motives, cannot be passed over 
in silence without an injury to the people at large. When 
issues as vital as those involved in war are at stake, the public 
is in no mood to listen even to the honest advocates of funda- 
mental changes in the machinery of the State, much less to 
those whose motives in denouncing the existing form of gov- 
ernment are not above suspicion.^ 

Broad scope of the Sedition Act. It cannot be denied, 
however, that the terms of the law were unnecessarily broad, 
and that they gave to the courts a power which could have been 
used in a most oppressive and arbi-trary manner had not judi- 
cial traditions been present to restrain them. In the single 
case which has thus far been passed upon by the Supreme 
Court,- the facts sustaining the conviction were of such a 

1 It is interesting to oompare the provisions of -the Espionage and Se- 
dition acts with the order of President Lincoln in pursuance of the act 
of 1863, under which the writ of habeas corpus was suspended with re- 
spect to an aider or abetter of the enemy, who was defined as " one who 
seeks to exalt the motives, •character, and capacity of armed traitors — 
overrates the success of our adversaries or underrates our own — who 
seeks false causes of complaint against our Government or inflames 
party spirit among ourselves and gives to the enemy that moral support 
which is more valuable to them than regiments of soldiers or millions of 
dollars." The order is quoted by Senator Sutherland as to be " read 
with profit " by those who condemn the Sedition Act as unnecessarily 
drastic. " Constitutional Power and World Affairs," p. 104. 

2 Abrams et al. v. United States, decided November 10, 1919. The 
five defendants were of Russian birth and \yere indicted for conspir- 
acy in publisliing two leaflets, one attacking the hypocrisy of the Presi- 
dent in sending troops to Russia against the Bolsheviki and classing 
the United States among the capitalistic nations which were the one 
enemy of the workers of the world, and the other urging workers in 
ammunition factories to refrain from producing bullets to murder 
their friends in Russia, and to reply to the " barbaric intervention " of 
the United States by a general strike. 



EMERGENCY LEGISLATION 175 

character as to lead to a vigorous dissent on the part of Justice 
Holmes who had delivered the opinion of the court in the cases 
arising under the Espionage Act referred to above. The ma- 
jority of the court, after reciting details of the circulars upon 
which the indictment was based, found that " the plain pur- 
pose of their propaganda was to excite, at the supreme crisis 
of the war, disaffection, sedition, riots, and, as they hoped, re- 
volution, in this country, for the purpose of embarrassing and 
if possible defeating the military plans of the Government in 
Europe " ; and they regarded the advocacy of a general strike 
as language used with intent to encourage resistance to the 
United States in the war. In his dissenting opinion Justice 
Holmes insisted that in order to warrant conviction there must 
be in every case a " present danger of immediate evil or an 
intent to bring it about " if Congress is to be warranted in set- 
ting a limit to the expression of opinion where private rights 
are not concerned ; and he failed to find in the leaflets evidence 
of actual intent in the strict sense required by the nature of the 
law, the purpose of the defendants being rather to prevent in- 
tervention in Russia than to impede the prosecution of the war 
against Germany. In conclusion the Justice summed up what 
seemed to him to be the proper attitude of the Government 
towards restrictions upon freedom of speech even in the case 
of attacks directed against the Constitution itself. " When 
men have realized," he said. " that time has upset many fight- 
ing faiths, they may come to believe even more than they be- 
lieve the very foundations of their own conduct that the 
ultimate good is better reached by free trade in ideas — that the 
best test of truth is the power of the thought to get itself 
accepted in the competition of the market; and that truth is 
the only ground upon which their wishes safely can be car- 
ried out. That, at any rate, is the theory of our Consitution. 
It is an experiment, as all life is an experiment. . . . While 
that experiment is part of our system I think that we should 
be eternally vigilant against attempts to check the expression 
of opinions that we loathe and believe to be fraught with death, 



176 POLITICAL SYSTEMS IN TRANSITION 

unless they so imminently threaten immediate interference with 
the lawful and pressing purposes of the law that an immediate 
check is required to save the country." 

Exclusion of obnoxious publications from the mails. A 
more controversial question arose in connection with the powers 
assumed by the Postmaster General in connection with title 
XII of the act declaring publications which violated any of the 
provisions of the act to be non-mailable. This provision of the 
law was interpreted by the Postmaster General as empower- 
ing him to declare what publications were actually in violation 
of the act, and he was thus enabled to exercise a form of cen- 
sorship over the press. The most important case that arose 
under this section of the law was that of the Masses Publish- 
ing Company v. Patten,^ which grew out of the decision of 
Postmaster Patten of New York City in excluding the August, 
1917, issue of that publication from the mails. The final deci- 
sion of the higher court confirmed the right of the Postmaster 
General to exclude from the mails matter declared by Congress 
to be non-mailable, and in -so doing to use his judgment and 
discretion as to the character of the publication, his decision 
being regarded as conclusive by the courts unless it should ap- 
pear to be clearly wrong. Circulation of a publication in the 
mails has been held on a number of occasions not to be part 
of the freedom of the press, and in this present instance the 
court pointed out that " it is at least arguable whether any 
constitutional government can be judicially compelled to assist 
in the dissemination of something that proclaims itself revolu- 
tionary." It has been freely asserted, however, that the deci- 
sions of the Postmaster General were in many instances highly 
arbitrary, and not based upon what " a reasonable man " would 
consider as a violation of the law, being particularly drastic 
in respect to statements reflecting unfavorably upon the allies 
of the United States. 

Constitutionality of a press censorship. It was pointed out 
above that the attempt made at the time of the passage of the 

1 246 Federal Reporter, 33. 



EMERGENCY LEGISLATION 177 

original Espionage Act to establish a censorship of the press 
haVi to be abandoned. It is still a matter of controversy 
whether such a censorship would be constitutional. A dis- 
tinction must here be made between a provision, such as 
the one before Congress, penalizing statements useful to the 
enemy made in violation of regulations issued by the Presi- 
dent and the creation of a board of censors who should pass 
in advance upon what might or might not be published. No 
constitutional objection would seem to hold against the former 
restriction once it be admitted that the need of some ^uch 
restraint actually existed. The traditional doctrine of the 
liberty of the press has been that it consisted in freedom from 
restraints imposed previous to publication, leaving it to the 
publisher subsequently to defend himself before the courts 
against the charge of having published slanderous or seditious 
matter. Nor does there seem to the present writer any con- 
stitutional objection even to the establishment of a board of 
censors who should prevent by anticipation the publication of 
injurious matter, again assuming the necessity of such action 
for the protection of the country. If freedom of speech can 
be made to yield to the demands of war, freedom of the press 
can equally be called upon to subordinate itself to the national 
exigency. Whether as a political issue the establishment of 
such a censorship would have been wise or expedient in the re- 
cent war is, of course, another question, and it is possible to 
answer it in the negative without denying the constitutional 
right of the state to meet the demands of self-preservation.^ 

1 On this general subject the following studies may be consulted: 
" Freedom of Speech and of the Press in War Time : the Espionage 
Act," by T. F. Carroll, in "Michigan Law Review," June, 1919; "Free- 
dom of Speech in War Time," by Z. Chaf ee, Jr., in " Harvard Law Re- 
view," June, 1919. 

The aftermath of the Espionage and Sedition acts has taken the 
form of a number of bills by which it is proposed that Congress re- 
strict the advocacy of radical methods of changing the form of Gov- 
ernment of the United States, whether by a general strike or by any 
other method not provided for by the Constitution. 



178 POLITICAL SYSTEMS IN TRANSITION 

The War Materials Destruction Act. Among other meas- 
ures passed by Congress to prevent interference with the con- 
duct of the war were the War Materials Destruction Act, ap- 
proved April 20, 1918, and the Trading with the Enemy Act, 
approved October 6, 191 7. The former, otherwise known as 
the Sabotage Act, is of interest because of the collateral ques- 
tion of conscripting labor which was raised during its pas- 
sage. It penalizes the act of wilfully destroying war ma- 
terials, or factories engaged in their production, or utilities, 
such as railroads and bridges, used in connection with them; 
also the act of wilfully making or causing to be made in a de- 
fective manner any war material or instruments used in the 
production of war material. When the original bill came be- 
fore Congress an amendment was carried penalizing the act of 
conspiring to prevent the erection of war premises or the pro- 
duction of war material with intent to obstruct the United 
States in preparing for or in carrying on the war. This amend- 
ment was interpreted as an -attempt to prevent strikes among the 
workers in war industries, and a second amendment was 
adopted to the effect that nothing in the act should be so con- 
strued as to prevent employees from agreeing to stop work 
for the bona fide purpose of securing better wages or condi- 
tions of employment. The second amendment met with such 
sharp opposition in the Senate that the report of the conference 
committee was rejected, and it was only after further delay 
that a suggestion of Mr. Gompers, that either both amend- 
ments should be retained or both eliminated, was adopted and 
the two houses reached a decision to eliminate them. 

The Tradinp; with the Enemy Act. The Trading with the 
Enemy Act was a pure war measure primarily designed to 
prohibit commercial intercourse with the enemy, but contain- 
ing in addition provisions authorizing the President to pro- 
vide a censorship of messages between the United States and 
any foreign country, to issue regulations with regard to the 
foreign-language press within the country to prevent its use 
to promote disloyalty, and to lay an embargo on imports from 



EMERGENCY LEGISLATION 179 

any foreign country. A further important provision enabled 
the Government to take over all property situated in the United 
States belonging to an enemy or ally of the enemy. This last 
provision specifically created the office of Alien Property Cus- 
todian, who was empowered to seize and sequestrate property 
of the enemy as described in the act. The property taken 
over was not that of German citizens resident in the United 
States, but of persons residing in the enemy country, in order 
that not only should no profit be derived from such property 
to the advantage of the enemy, but that in cases where the 
property existed in the form of industrial enterprises, these 
latter should not be operated in a manner detrimental to the 
interests of the United States. It is a problem not within the 
scope of the present volume how far the activities of the Alien 
Property Custodian exceeded the rights of the United States 
under the customary rules of international law. That there 
was a marked departure from the practice of previous wars is 
clear ; while the fact that the changed circumstances of the 
recent war demanded such a departure is but another com- 
ment upon the paradoxical character of the " laws of war." 

The problem of the enemy alien. The declaration of war 
raised in an acute form the question of the status of unnatural- 
ized persons of foreign birth who were present to the num- 
ber of many millions in our population.^ These aliens in- 
cluded both those born on the soil of the enemy country, or 
born of enemy parentage in countries other than the United 
States and Great Britain, and those born in countries other 
than those of the enemy and of other than enemy parentage. 
The former group were bound by a legal bond of allegiance to 
the enemy, and might in many or in most cases be regarded as 
in sympathy with the enemy as against the country of their 
residence. In addition to these unnaturalized enemy aliens 
were others of enemy birth or parentage who had become 

''■ Figures compiled by the National Americanization Committee 
early in 1918 showed that there were in the United States thirteen 
million persons of foreign birth and thirty-three million of direct for- 
eign parentage. " American Year Book, 19 18," p. 797. 



i8o POLITICAL SYSTEMS IN TRANSITION 

naturalized, but whose affections were still tied up with their 
mother country and who had never contemplated the practical 
possibility of having to choose between it and their adopted 
country. As a result of this situation the Federal Government 
found it necessary to take steps for the protection of the coun- 
try against any overt acts which sympathizers with the enemy 
might be led to commit either upon their own initiative or at 
the instigation of secret agents of the enemy. Even before the 
entrance of the United States into the war the numerous ex- 
plosions in ammunition factories and other outrages pointed 
to the existence of an organized campaign to obstruct the 
industries of the United States in so far as they might be en- 
gaged in the manufacture of war material to be sold to the 
allied powers. 

Control over persons and property of enemy aliens. Au- 
thority had already been granted by Congress to the Presi- 
dent before the declaration of war for the arrest and detention 
of alien enemies,^ and it was only necessary for the Executive 
Department to determine upon the degree of restraint to be im- 
posed upon them. Entrance into the country or departure from 
it was denied to them ; zones and districts were fixed into which 
they were not permitted to enter ; registration was required of 
them ; their freedom of movement was in certain cases re- 
stricted to their places of residence and of business; and their 
freedom of speech limited by the provisions of the Espionage 
and Sedition Acts. An elaborate secret service was created 
by the Department of Justice under its Bureau of Investigation, 
the object of which was to keep in touch with enemy-alien 
activities and enable the government to take immediate action 
in cases where the restrictions imposed were being violated. 
Restrictions were placed upon the business activities of enemy 
aliens to the extent necessary to prevent assistance being given 
to the enemy by indirect or even negative means, as for ex- 
ample through the withholding from the use of the public of 

lAn amendment was adopted extending the provisions of the act to 
women as well as to men. 



EMERGENCY LEGISLATION i8i 

patented articles. Provision was made that patents and copy- 
rights owned or controlled by the enemy should be open to 
use by citizens of the United States, and restrictions were 
placed upon the further granting of patents and copyrights to 
enemy aliens. Branches of insurance companies incorporated 
in the country of the enemy or of its allies were brought under 
supervision and were forbidden to write insurance after De- 
cember 9, 191 7, or to enter into reinsurance contracts after 
January 11, 1918; but no restriction was placed upon existing 
contracts, which were allowed to run until regular expiration. 
Functions of the Alien Property Custodian. More drastic, 
however, than the restrictions upon the personal freedom and 
business affairs of resident enemy aliens were the measures 
taken by the Government to sequestrate and administer the 
property located in the United States of enemy citizens resid- 
ing within the military lines of Germany and her allies or resid- 
ing outside the United States and doing business inside those 
lines. The object of this section of the Trading with the 
Enemy Act was not to confiscate the property of the enemy, 
which was protected by the rules of international law, but to 
prevent the enemy from reaping any advantage from the pos- 
session by its citizens of property situated in the United States. 
The Alien Property Custodian w^as empowered to receive all 
money and property in the United States due or belonging to 
an enemy or ally of the enemy, and to hold and administer the 
same under the general direction of the President. Debts 
owing to persons in the country of the enemy or of its allies 
were to be paid over to the Alien Property Custodian and 
should be thereupon regarded as discharged. Mortgages might 
be enforced upon the property of the enemy and the proceeds of 
the sale in excess of the obligation were to be transferred to 
the care of the same official. The administrative machinery 
created by the Alien Property Custodian for the performance 
of the above duties was elaborate, consisting partly of an of- 
ficial force of investigators and partly of the volunteer assistants 
placed at his service by the heads of the banks, trust com- 



i82 POLITICAL SYSTEMS IN TRANSITION 

panics, and corporations whose books had to be examined. In 
some cases the property thus discovered and taken possession 
of was administered by the Custodian as trustee for the owners, 
but in most cases it became necessary to sell the property or 
business as a going concern and hold the funds in trust for 
the owners. In the latter case provision was made that the 
property should be sold only to American citizens, who were 
obligated not to resell such property to persons not citizens of 
the United States. Undoubtedly the action thus taken by the 
United States was, as has been said above, in excess of the 
prescriptions of international law in respect to the property of 
enemy citizens, and its justification must be sought in the 
changed conditions of modern finance which, by means of a 
complex system of international exchange, permits the trans- 
fer of funds in ways that easily evade detection. A further 
justification was offered by the Alien Property Custodian in 
the fact that many of the investments of German citizens in 
the United States were made with the object of securing con- 
trol over industries contributing to the successful prosecution 
of war, and that in many cases these industries were at the 
same time being made the center of a secret service system 
maintained by the enemy .^ 

1 It is of interest to note that the peace treaty with Germany stipu- 
lates that the Allied and Associated Powers reserve the right to re- 
tain and liquidate all property, rights and interests within their terri- 
tory belonging to citizens of Germany. The net proceeds of the sale 
of such property, both during and after the war, are credited to Ger- 
many, and to be applied by each State to the satisfaction of claims by 
its citizens with regard to their property in Germany or to the satis- 
faction of debts owing to them by Germans. Germany on her part 
undertakes to compensate her citizens in respect to the sale or reten- 
tion of such property. In answer to the complaint of the German del- 
egation that this procedure amounted to a confiscation of the property, 
the Allies replied that it was justified on the ground that Germany's 
resources were wholly inadequate and, that the Allied Powers them- 
selves were obliged to take over foreign investments of their citizens 
to meet foreign obligations, giving their own domestic obligations in 
return. 



EMERGENCY LEGISLATION 183 

Comprehensiveness of the war powers of the Government. 

We have seen that the demands of the war brought about a 
wide extension of the powers of the Federal Government, lead- 
ing Congress to enact, in the exercise of its power " to raise 
and support armies," legislation of a very comprehensive char- 
acter looking to the mobilization of all the forces of the coun- 
try deemed necessary to attain the objects of the war. At the 
same time the executive department of the Government was 
led to interpret liberally the authority conferred upon it by 
Congress and in some instances to act even without clear statu- 
tory authorization. In none of these cases, however, was the 
constitutional right of Congress or of the President to take such 
action questioned by the Supreme Court as the authoritative 
interpreter of the Constitution. It would seem, therefore, that 
it may be laid down as a general principle that the power of the 
Federal Government to prosecute a war is as comprehensive 
as the needs of the situation demand ; and that the normal 
restrictions placed by the Constitution upon the central Gov- 
ernment in favor of the States and in favor of the rights of the 
individual citizen, while still operative in time of war, do not 
in actual fact constitute an interference with the free hand of 
the central Government in the accomplishment of both strictly 
military objects and other non-military objects regarded as 
essential to the attainment of military ends. The problem 
now to be examined is the relation of the organization of the 
Federal Government to the conduct of the war. Was this 
organization equal in efficiency to the powers conferred upon it 
and to the tasks confronted by it? And if not, what changes 
were required in it and how far were these changes effective 
to accomplish the desired object? It was here that the Con- 
stitution of the United States was put to the severest test, 
and here that the most serious flaws were discovered in its ma- 
chinery of government. The lessons that may be learnt from 
the experience of the war for the present period of reconstruc- 
tion will appear incidentally in the following pages, and will be 
discussed at greater length in the concluding chapter. 



CHAPTER VIII 

CHANGES IN THE ORGANIZATION OF THE 
GOVERNMENT 

The Executive Department in time of war. The chief 
burden of the war fell naturally upon the executive depart- 
ment of the Government. Besides being commander-in-chief 
of the army and navy the President was at the same time the 
head of a vast administrative system of departments and sub- 
departments which in time of peace fulfilled their functions 
according to set rules, but which in time of war were thrown 
out of gear by the necessity of undertaking new tasks and of 
creating new machinery to accomplish them. How far did 
the apparent unity of command in the administrative system 
prove effective? Had the President the complete control over 
the departments of the administration which his position of 
chief executive appeared to confer upon him? To what ex- 
tent did the several departments cooperate with one another 
in order to prevent overlapping and duplication of functions? 
Had the President a free hand in rearranging the personnel and 
activities of the departments, so as to be able to make the 
transfers and combinations called for by the special condi- 
tions? Finally, to what degree was there cooperation be- 
tween the executive departments and the various committees of 
Congress dealing with subjects which fell within the range of 
the particular department? To answer these questions ade- 
quately would require a complete history of the war adminis- 
tration ; but they may be answered here in sufficient detail 
to enable us to judge more or less accurately the character of 
the national administration when confronted with the problems 
of war, and to disclose to some extent the weaknesses of the 
present system and the need of permanent changes in its or- 
ganization and functions. 

184 



CHANGES IN GOVERNMENT 185 

The President a " one-man " executive. Even within the 
limits of restrictions which will be later pointed out, the Presi- 
dent of the United States possesses powers which no other 
democratic nation has seen fit to entrust to the elected head 
of the Government. While the Constitution of the United 
States was pending ratification, Alexander Hamilton under- 
took a defense of the decision of the Constitutional Convention 
in favor of a single Executive, and argued that " energy in 
the Executive is a leading character in the definition of good 
government." " They have," he said of the framers of the 
Constitution, " with great propriety, considered energy as the 
most necessary qualification of the former (the Executive), and 
have regarded this as most applicable to power in a single 
hand." And later he observed that " in the conduct of war, 
in which the energy of the Executive is the bulwark of the 
national security, every thing would be to be apprehended 
from its plurality." ^ That the President should have asso- 
ciated with him a council " whose concurrence is made neces- 
sary to tlie operations of the ostensible Executive " would, he 
considered, infect the executive authority " with a spirit of 
habitual feebleness and dilatoriness." Even Jefferson, who 
was at first opposed to a single Executive and in favor of a 
supreme executive council as tending less towards centralization 
in government, confessed in later years that " plurality in the 
Supreme Executive will for ever split into discordant factions, 
distract the nation, annihilate its energies." 

Extent of power he may exercise. Commenting on the 
above opinion of Jefferson, which he reproduces at greater 
length, a British statesman is led to observe that " nothing 
could more strongly condemn the intrinsic weakness of gov- 
ernment by a Cabinet, especially in time of war, and nothing 
could more strongly recommend the necessity of a one-man 
Executive for democracy " ; ~ and he goes so far as to assert 

^ " Federalist," No. 70. 

2 Politicus, " Many-Headed Democracies and War," " Fortnightly Re- 
view," May I, 1918. 



i86 POLITICAL SYSTEMS IN TRANSITION 

that " while a one-man Executive will provide * an energy 
and coherence of administrative action such as no other sys- 
tem can secure,' the British system of Cabinet government, 
which has been copied by the European democracies, provides 
vacillation, incoherence, muddle, and endless delays. That 
has been abundantly proved by the present war." The Presi- 
dent of the United States is, indeed, a dictator within a limited 
sphere and for the fixed term of his office. In time of war 
it is possible for Congress to confer upon him almost unlimited 
power, so that the question of an efficient or inefficient war 
administration becomes mainly a question of the personal 
ability of the President and of the extent to which Congress is 
willing to go in authorizing executive action.^ Assuming a 
willingness on the part of Congress to grant such powers as 
are needed by the President for the effective prosecution of 
the war, there is nothing to prevent him from possessing for 
the time practically absolute authority and from unifying in 
his person all of the agencies of the Government. The Con- 
stitution places no obstacle in the way of the complete cen- 
tralization of all the war activities of the administration. 

The President and the administrative departments. It is 
somewhat remarkable that while Congress was ready, as we 
have seen, to confer upon the President most of the powers 
needed for mobilizing the military forces and the financial and 
industrial resources of the country, it appeared somewhat re- 
luctant to allow him a free hand in the reorganization of the 
administrative departments. It is of importance to observe 
that in respect to the question of unity of control over the ad- 
ministrative system at the beginning of the war, the President's 

lit is inaccurate to speak of Congress as "conferring power" upon 
the President, since the President can but execute such measures as 
are adopted by Congress, and a delegation of the legislative power of 
Congress to the President would be unconstitutional. It is common 
practice, however, to speak of grants of power by Congress to the 
President, since for all practical purposes the passage of a law which 
brings the executive powers of the President into action is equivalent 
to a grant of power or conferring of authority. 



CHANGES IN GOVERNMENT 187 

position of supreme command was not in fact what it appeared 
to be on the surface. For unity of control implies the power to 
command the services of subordinates and to dictate their 
functions according to the commander's judgment of present 
needs. But it will be remembered that while the President is 
invested by the Constitution with the executive power of the 
Government, the administrative departments through which the 
positive legislation of Congress is put into effect are conducted 
in accordance with definite statutory regulations. It is for 
Congress to determine what shall be the organization of the 
Department of the Interior, for example, and what functions 
its officials shall perform ; and the President can but play the 
part of superintendent, with no power to alter policies except 
in respect to those minor matters which Congress has left to 
the decision of the head of the department, who, being the 
President's appointee, may be supposed to be ready to take 
counsel with him. For a change in the duties to be performed 
by a department, or for a reorganization of its personnel, or for 
a grouping of the personnel of several departments and a com- 
bination of their functions, the President must apply to Con- 
gress for definite statutory authorization. So little was the 
President master of the administrative departments of the 
Government at the beginning of the war that it would have been 
an actual violation of the law for him to have used any part of 
the public funds to pay the expenses of any commission or 
board the creation of which had not been authorized by act of 
Congress ; nor was the President at liberty to detail any part 
of the personnel of the existing departments to any such un- 
authorized commission or board.^ In consequence, the pas- 

1 Act of March 4, 1909. Professor Ford, after quoting the text of 
the act, makes some illuminating comments upon the general relations 
of the Executive to Congress. " The inadequacy of the statutory 
powers of the President of the United States," he says, " is causing 
his office to have a strong tendency to assume the character of a dic- 
tatorship, acting without regulation or control in the exercise of the 
\ague and illimitable war powers of the Constitution." "The War 
and the Constitution," " Atlantic Monthly," October, 1917, p. 492. 



i88 POLITICAL SYSTEMS IN TRANSITION 

sage of many of the laws described above, by which Con- 
gress conferred new powers upon the President for the prose- 
cution of the war, found the executive department without 
any adequate organization ready to put the law into effect ; and 
in a number of cases it was necessary to delay action upon the 
law until the necessary administrative machinery could be 
created. 

The Council of National Defense. One agency of co- 
ordination did, it is true, exist at the beginning of the war in 
the shape of the Council of National Defense. This body, 
already under consideration for several years, was created by 
a clause in the Army Appropriation Act of March 29, 1916, 
at a time when it seemed not improbable that the United 
States might be drawn into the war. It consisted of the Secre- 
taries of War, the Navy, the Interior, Agriculture, Commerce 
and Labor, and its general purpose was defined in the act as 
being " the coordination of industries and resources for the 
national security and welfare," and its specific duties were 
declared to be " to supervise and direct investigations and make 
recommendations to the President and the heads of the execu- 
tive departments as to the location of railroads with the ob- 
ject of expediting the concentration of troops and supplies to 
points of defense, the coordination of military, industrial, and 
commercial purposes in the location of highways and branch 
lines of railroad, the mobilization of military and naval re- 
sources for defense, the increase of domestic production of 
articles and materials essential to the support of armies and 
of the people during the interruption of foreign commerce, 
and the " creation of relations " which would render possible 
in time of need the immediate concentration and utilization of 
the resources of the nation. In pursuance of the functions thus 
assigned to it the Council of National Defense was authorized 
to nominate for appointment by the President an Advisory 
Commission " consisting of not more than seven persons, each 
of whom shall have special knowledge of some industry, pub- 
lic utility, or the development of some natural resource, or be 



CHANGES IN GOVERNMENT 189 

otherwise specially qualified, in the opinion of the Council, for 
the performance of the duties hereinafter provided." More- 
over, the Council was authorized to " organize subordinate 
bodies for its assistance in special investigations, either by the 
employment of experts or by the creation of committees of 
specially qualified persons to serve without compensation, but 
to direct the investigations so employed." These subordinate 
agencies became during the course of the war exceedingly 
numerous, and in the performance of their specialized functions 
they drew upon the business and scientific ability of large num- 
bers of private citizens who responded to the call for volunteers. 
Some agencies were made directly responsible to the Council, 
as in the case of the Committee on Coal Production, the 
General Munitions Board, and the Section on Cooperation with 
States ; while other committees were constituted under the in- 
dividual members of the Advisory Commission. Changes 
were made in the administrative machinery of the Council from 
time to time as experience showed the means of attaining 
greater efficiency, and new bodies were created to perform new 
functions. At the same time a number of agencies, such as the 
War Industries Board, which were originally organized as 
units under the Council, were transferred from its control and 
made independent bodies directly responsible to the Presi- 
dent.' 

Functions performed by the Council. It is important to 
observe that the functions of the Council were strictly advisory 
in character, and that its subordinate boards and committees 
possessed no administrative power to carry into effect the 
recommendations made by them. From the start the Council 
laid stress upon its " function of adjustment." It " sought to 
serve as a channel through which the best professional and in- 
dustrial intelligence of the country could make itself most ef- 

1 The organization and personnel of the Council of National De- 
fense and of its Advisory Commission and of the subordinate boards 
and committees may be found in the appendices to the First and Sec- 
ond Annual Reports of the Council. 



I90 POLITICAL SYSTEMS IN TRANSITION 

fectively available to the Government departments." It re- 
cognized the fact that the war was *' essentially a war of the 
mechanic and of the machine," and that the " direction of the 
machinery of American industry for the national defense neces- 
sarily involves the creation of an organization of great flexi- 
bility. . . . Constantly recurring demands for increases in 
personnel and for new efforts in unexpected directions have 
had to be met as the war progressed. It has been the efifort of 
the organization of the Council of National Defense to hold 
itself in constant readiness to meet such new demands and 
to shift its ground and expand its facilities in the interest of 
the national service." ^ In the Second Annual Report the 
director described the work of the past year as having con- 
sisted in " drawing together immediately the country's re- 
sources and making them available to the authorized execu- 
tive agencies of the Government," and in " initiating and plan- 
ning the organization of new agencies which could be clothed 
as need demanded with the requisite power." " The Council 
has served," the director said, " as a great administrative 
laboratory through which new plans and new and necessary 
functions could be initiated and developed, and where effective 
action demanded, passed on to permanent or emergency agencies 
of the Government." Cooperation between the subordinate 
agencies of the Council in the formulation of policies was ob- 
tained in some measure by giving representation upon the 
several boards to members of other boards, and thus permitting 
a general discussion of common objects. 

Criticism of the work of the Council. Nevertheless, in 
spite of the elaborate program which the Council mapped out 
for itself, considerable criticism has been directed against 
it, and against its auxiliary Advisory Commission, from vari- 
ous quarters because of its inability to act as the coordinating 
agency so urgently required by the administrative departments. 
Its failures have been summed up by the Director of the 

1 First Annual Report of the Council of National Defense, for the 
fiscal year ended June 30, 1917, p. 8, 



CHANGES IN GOVERNMENT 191 

Institute for Government Research under the following head- 
ings : First, the Council did not respond to its opportunity 
as a body to formulate general plans for the mobilization of 
industry, nor did it even formulate a consistent program for 
its own activities by attempting to define the jurisdiction and 
duties of the various committees and subcommittees which 
were organized under it. Secondly, it failed properly to co- 
ordinate its own activities with those of the Advisory Com- 
mission, so as to prevent duplication of organization and func- 
tions. Thirdly, the Council made little attempt to build up 
a strong administrative organization manned by a permanent 
personnel of experts. Fourthly, some of the committees failed 
to remember that their powers were of an investigatory and 
advisory character, and assumed administrative functions which 
came into conflict with those of the War Department. Lastly, 
the mistake was made of making the committees in their re- 
lations with producers agencies for representing the Govern- 
ment instead of agencies for the representation of the pro- 
ducers, with the result that in a number of cases the committees, 
being composed of representative producers, had to recommend 
the placing of contracts with their own members. This mistake 
was in due time appreciated, and the committees were reor- 
ganized accordingly.^ 

Proposed Ministry of Munitions. It is doubtful whether, 
even had the Council of National Defense responded fully to 
the demands made upon it, an efficient war administration 
could have been obtained. For the task thrown upon the ad- 
ministrative department was not merely that of formulating a 
general program of operations, but of distributing the duties 
thus determined upon to the proper departments, and of bring- 
ing the whole series of functions under one centralized control. 
To accomplish this three- fold task was not only a colossal 
undertaking in itself, but required greater powers over the ad- 
ministration than Congress had thus far conferred upon the 

1 W. F. Willoughby, " Government Organization in War Time and 
After," pp. 14-16. 



192 POLITICAL SYSTEMS IN TRANSITION 

President. The war had not been in progress many months 
when it became clear to all observers that the wheels of the 
administrative machinery were not all in gear, and criticism 
both in the public press and in Congress demanded that steps 
be taken to secure greater coordination and efficiency. This 
demand became all the more insistent when the War Depart- 
ment appeared unable to secure the necessary equipment re- 
quired in the great training camps scattered throughout the 
country. Supplies of clothing were inadequate and arms 
could only be supplied to those actually entraining for the 
front. An inquisitorial examination of the Secretary of War 
before the Senate Committee on Military Affairs failed to 
convince that body that satisfactory progress was being made. 
In consequence two distinct bills were brought forward by the 
chairman of the Committee, one providing for the establish- 
ment of a new Department of Munitions, and the other pro- 
viding for the creation of a War Cabinet. The proposed 
Department or Ministry of Munitions was intended to replace 
the War Industries Board, which had been created by the 
Council of National Defense, but which lacked the administra- 
tive powers necessary to carry its decisions into effect. Its 
director was to be given a seat in the Cabinet and to be en- 
trusted with complete control over" supplies of every kind 
for the army and the navy. The President, however, opposed 
the creation of a new department, and undertook instead to 
strengthen the position of the War Industries Board by taking 
it from under the Council of National Defense and making it 
" a separate administrative agency " to act for him and under 
his direction.^ 

The proposed War Cabinet. The proposal for the creation 
of the War Cabinet was urged with greater insistency. The 
Giamberlain bill provided that the new organ of control should 
be composed of " three distinguished citizens of demonstrated 
ability to be appointed by the President, by and with the advice 
and consent of the Senate, through which War Cabinet the 

'^ See above, p. 150. 



CHANGES IN GOVERNMENT 193 

President may exercise such of the powers conferred on him 
by the Constitution and the laws of the United States as are 
hereinafter mentioned and described." The powers of the War 
Cabinet as set forth in the bill may be summarized as includ- 
ing the power to supervise, coordinate and control the func- 
tions and activities of all executive departments, officials and 
agencies ; to obtain information from and to utilize the services 
of any of the executive departments and their officers, and to 
issue, subject to review by the President, the orders necessary 
to make their decisions effective. The War Cabinet would thus 
have become a small directorate with practically unlimited 
directive powers, but with small administrative powers. Had 
it actually been created, whatever may be thought of the prob- 
abilities of its effective operation, it would undoubtedly have 
come into conflict with the constitutional powers of the Presi- 
dent as commander-in-chief of the army and navy. At the 
same time it would have restricted his powers as chief execu- 
tive, since he is made by the Constitution ultimately responsible 
for the execution of the law even by those into whose hands 
Congress may have expressly entrusted that duty. Again, as 
in the case of the Ministry of Munitions, the opposition of the 
President and the substitution of an alternative proposal led 
to the abandonment of the bill. 

The Overman Act. In the meantime, while the above plans 
were being debated in Congress, the chairman of the Senate 
Committee on Rules, Mr. Overman, at the request of the Presi- 
dent introduced a bill " authorizing the President to coordi- 
nate and consolidate the executive bureaus, agencies, officers, 
and for other purposes, in the interest of economy and the 
more effective administration of the Government." The act, 
as finally passed on May 14, 1918, empowered the President 
to make such " redistribution of functions " among the execu- 
tive agencies as he might deem necessary, including any func- 
tions hitherto by law conferred upon any executive depart- 
ment or officer, in such manner as in his judgment should 
seem best fitted to carry out the purposes of the act, and to 



194 POLITICAL SYSTEMS IN TRANSITION 

issue the necessary regulations and orders. Moreover, it em- 
powered the President to coordinate or consolidate, in such 
manner as he might deem most appropriate, any executive com- 
missions or offices then existing, and to transfer the duties or 
powers, as well as the personnel, from one existing depart- 
ment or bureau to another. By the terms of the act the author- 
ity of the President was to be exercised only in matters re- 
lating to the conduct of the war, so that no general or perman- 
ent reorganization of the administrative services was contem- 
plated. As a matter of fact, by the time of the passage of 
the act most of the serious difficulties of the war, with the 
exception of the problems connected with the production of 
aircraft, had been more or less satisfactorily adjusted, with the 
result that the President did not feel it necessary to effect 
any important changes in the organization of the departments. 
Without needing any special authorization of Congress, the 
Council of National Defense had made a practice of holding 
weekly meetings which the heads of the more important war 
agencies were invited to attend ; while on his part the President 
had held similar weekly meetings with the same officials, which 
enabled him to assist in the coordination of their respective 
functions. What was needed, in the estimation of many ob- 
servers, was a body which could at once " plan " and " admin- 
ister." In order that such a body might plan, it should have 
been free from the burden of administrative detail, yet not 
so devoid of administrative powers as to be unable to see 
that its plans were put into effect precisely as devised. The 
existing Cabinet, with enlargements, might have proved such 
a body, had the powers of the Overman Act been granted 
to the President at the time of the creation of the Council 
of National Defense. 

The surrender of congressional powers. During the pas- 
sage of the Overman bill strong opposition was manifested 
by senators who felt that the constitutional powers of Congress 
were being abdicated in favor of the President. Liberal as 
had been the previous grants of power to the President, they 



CHANGES IN GOVERNMENT 195 

were in form at least the expression of the definite will of 
Congress, which had decided upon the policies embodied in 
the law, whatever measure of freedom might be accorded 
to the President in the determination of the means by which 
those policies were to be carried out. To Congress, it was 
argued, belonged the constitutional authority to " raise and 
support armies," and to pass all laws necessary and proper to 
accomplish that purpose. The President was but the executive 
head of the nation, whose duty it was to carry out the policies 
decided upon by Congress, not to frame them himself. The 
proposal to give him unlimited power to reorganize the admin- 
istrative departments was to create an autocracy in place of a 
democracy. Curiously enough, the opposition expressed 
against the surrender of so large a part of the control of Con- 
gress over the administration seemed to be considerably more 
determined in the case of the Overman Act, where the grant 
of power was to the President directly, than in the case of 
the proposed War Cabinet, where the grant of power was to 
a new body, a sort of " super-cabinet " unknown to the Con- 
stitution. It must be conceded that there was justice in the 
contention of certain senators that it was the part of Con- 
gress as a coordinate branch of the Government to map out 
lines of action and to consult and advise with the President 
as to the most eflFective measures to adopt. But on the other 
hand Congress had not given any exhibition of constructive 
statesmanship, and the initiative in all of the great war meas- 
ures previous to the debates on the War Cabinet had been taken 
by the Executive. As is inevitable under any form of govern- 
ment the actual control tends to pass to that department which 
in time of emergency shows itself best prepared to meet the 
situation. The forms of constitutional law may be preserved, 
but the substance of power will be exercised by the persons 
who are recognized as most capable of exercising it. In this 
instance the general public was but little disturbed by those 
members of the Senate who protested against the subordinate 
role to which Congress had been reduced. 



196 POLITICAL SYSTEMS IN TRANSITION 

Lack of cooperation between Congress and the Executive. 

The passage of the Overman Act, while marking perhaps 
the most striking example of friction between Congress and 
the Executive, does not stand alone as an instance of the 
lack of effective cooperation between them. Without raising 
the question as to which of the policies at issue on several 
occasions was the wiser to follow, the fact must be noted that 
in spite of the imposing array of powers conferred upon the 
President there were sharp differences between the two co- 
ordinate branches of the Government, and that these differences 
found no available means of prompt solution. The differences 
were, in truth, inherent in the very nature of the constitutional 
relations between the two departments, and it is fairer to place 
the blame for them as much upon the system of government 
as upon the individual parties to the dispute. The Constitu- 
tion does not prevent effective team work between the Presi- 
dent and Congress, nor on the other hand does it compel it. 
Apart from his limited powers as commander-in-chief of the 
army and navy the President is but the constitutionally ap- 
pointed agent of Congress, which must pass the necessary leg- 
islation before he can act. The term " chief executive," as 
applied to the President is apt to mislead the ordinary citizen 
into supposing that certain positive powers, common to execu- 
tive positions in business organizations, are inherent in the 
office of the President; whereas in so far as the normal activi- 
ties of the individual citizen and of national industrial enter- 
prises are concerned the President is powerless to make de- 
mands or to impose restraints, except as planned for him by 
Congress or speciiically left to his discretion by Congress. If 
Congress is liberal in its grants of power to the President in 
time of war, both as regards the means and resources required 
for the prosecution of the war and as regards full liberty in the 
choice of au.xiliary agencies, the President can become the 
head of as unified and efficient a war administration as it is 
possible for the wisdom of the executive department to de- 
vise. The value of the centralization of executive authority 



CHANGES IN GOVERNMENT 197 

provided for by the Constitution may then be experienced to 
the full. On the other hand if Congress is suspicious of the 
Executive, if it delays to grant him the necessary sinews of 
war, if it restricts him in the use of administrative agencies, 
the alleged advantages of a " one-man executive " may prove 
wholly illusory. The question whether cooperation shall ex- 
ist depends, therefore, upon the statesmanship of the two co- 
ordinate bodies of the Government. The state of " constitu- 
tional unpreparedness," to which reference has previously been 
made, in which the United States found itself at the beginning 
of the war by reason of the separation of the powers of gov- 
ernment between the several departments, each checking and 
balancing the other, was not an absolute barrier to success. 
It merely demanded more of the human elements in command 
of the machinery of government than a more simplified system, 
like that of cabinet government, would have done. 

Position of the President as political leader. No mention 
has been made of the influence of the President over the 
affairs of the country in his role of pohtical leader, for this 
is a matter not dependent upon the will of Congress but based 
upon the position which the President may by right assume 
in virtue of his constitutional position as chief executive. The 
sources of this influence were well expressed by the present 
incumbent of the office in earlier days : " The nation as a 
whole has chosen him (the President), and is conscious that 
it has no other political spokesman. His is the only national 
voice in affairs. Let him once win the admiration and con- 
fidence of the country, and no other single force can with- 
stand him, no combination of forces will easily overpower 
him. ... If he rightly interpret the national thought and 
boldly insist upon it, he is irresistible ; and the country never 
feels the zest of action so much as when its President is of 
such insight and character. Its instinct is for unified action, 
and it craves a single leader." ^ That the influence of the 
President has grown greatly in recent years is an obvious histor- 

^ " Constitutional Government in the United States," p. 68. 



198 POLITICAL SYSTEMS IN TRANSITION 

ical fact, and there have not been wanting voices of protest 
against what is regarded as the subjection of Congress " to 
such a degree of executive domination as to threaten the stabil- 
ity of the principle of departmental independence involved in 
the distribution of the several powers among the three branches 
of government." ^ Senator Sutherland sees a tendency on the 
part of the public to regard the President as a superior officer 
and as the sole repository of power, rather than as a " coequal 
member of a tripartite organization." With the advent of war 
the President was clothed, he says, " with the role of a virtual 
political dictatorship." " The danger of such a situation," 
he continues, " is that Congress will be driven from its tradi- 
tional and constitutional place in public thought, as a coordinate 
branch of the Government, with the unfortunate result that 
subordination and obedience will tend to replace common coun- 
sel and team work." ^ 

Personal responsibility assumed by President Wilson. 
That the burden thrown upon the office of the President dur- 
ing the war appeared at times to be too heavy for any single 
man to carry was the result not so much of the centralization 
of power in the hands of one man, as of the unwillingness 
of the President, in the opinion of certain observers, to dele- 
gate his authority to his subordinates. If the President chose 
to reserve to himself the final decision on a wide variety of 
controversies among the multifarious boards and commissions 
of the administration, it was not from any constitutional obli- 
gation to assume such duties, but from his personal belief that 
such a centralization of authority was the more advisable course 
to pursue. At the outbreak of the war there was no organiza- 
tion upon which the President could unload the responsibilities 
of his office, and the task of creating such an organization 
.w^ould have been one of exceptional difficulty. Nevertheless 
it was thought by many that some such delegation of author- 
ity should have been attempted. One plan proposed would 

1 G. Sutherland, "Constitutional Power and World Affairs," p. 75- 
2 /bid., p. 76. 



CHANGES IN GOVERNMENT 199 

have shifted to a subordinate war council the power, subject 
to certain broad lines of policy adopted in consultation with 
the President, to determine upon plans for the prosecution of 
the war, and to entrust the execution of those plans to an 
executive board which should represent the heads of the 
branches of the administration performing functions connected 
with the war in its industrial as well as in its military and 
naval aspects. An analysis by diagram of the various boards, 
commissions, and individual directors and administrators in 
their relations to the President would give us a huge wheel, at 
the hub of which would be the President in his capacity as 
creator, by congressional authority, of the branches of the ad- 
ministrative machinery and as ultimate coordinator of their 
functions and umpire of their conflicts ; whereas it was con- 
tended that the proper and efficient relationship between the 
President and the ramifications of his war administration should 
have been that of general superintendent and director of pol- 
icies, with power distributed to his subordinates through suc- 
cessive delegations of authority. The subject was freely dis- 
cussed in Congress and in the public press, but no constructive 
plan, satisfactory to the President, could be agreed upon. 

Impediments resulting from the committee system in 
Congress. The failure of the two houses of Congress to co- 
operate with each other, as well as with the Executive, in the 
expedition of public business was due to the constitutional im- 
pediment of a bi-cameral legislature, but the degree of the 
failure was increased greatly by the organization of the two 
houses, for which political tradition and not the Constitution 
was responsible. Legislation in both houses is accomplished 
through the agency of committees, to which all proposed meas- 
ures are referred ; and the report of these committees upon a 
bill is generally decisive in determining its fate. By a rule of 
long standing the chairmanship of the committees falls to mem- 
bers not primarily upon the basis of qualifications possessed 
by them for the work, but upon the ground of length of service 
in Congress. The result is that while the chairman of the com' 



200 POLITICAL SYSTEMS IN TRANSITION 

mittees generally represent their party on questions of domestic 
politics, which have been an issue in elections, it is quite possi- 
ble that in the event of a new issue arising, such as the action 
to be taken by the United States in answer to the renewal of 
submarine warfare by Gennany, the chairmen of the commit- 
tees may not represent the majority either of the house as a 
whole or even of their own political party. By an unfortunate 
coincidence the outbreak of the war found the heads of a num- 
ber of the most important committees sharply divided as to the 
policies to be pursued. The Chairman of the Foreign Relations 
Committee of the Senate was strongly opposed to the declara- 
tion of war, while the chairman of the House Committee was 
equally strongly in favor of it. The chairman of the House 
Committee on Military Afifairs was opposed to any plan of con- 
scription for the army, whereas the chairman of the same com- 
mittee in the Senate was strongly in favor of that method of 
raising troops. The chairman of the Committee on Ways and 
Means of the House of Representatives voted against a declara- 
tion of war on the ground that it did not involve either the 
moral or the material interests of the country, while the chair- 
man of the Senate Finance Committee held the opposite opinion. 
The result was that whatever the desire of the majority of 
both houses to expedite the passage of the necessary war 
measures, delays were experienced in pressing the committees 
in charge to take prompt action upon them. 

The system of control through licences. In addition to the 
problems connected with the reorganization of the administra- 
tive departments mention must be made here of two important 
devices resorted to by the Government to obtain control over 
certain private industries and to secure the performance of 
certain services which it was desirable should retain the char- 
acter of private enterprises. We have seen above that the 
Government issued licences to persons engaged in import and 
export business, to food dealers, mine operators, and producers 
and dealers in fuel oil. The advantages of this system of 
licences were that it enabled the Government to fix for each 



CHANGES IN GOVERNMENT 201 

industry separately the conditions to be met by persons desir- 
ing to engage in it or already engaged in it, and to enforce 
the observance of those conditions by threatening to withdraw 
the licence of a given producer who refused to abide by the 
regulations imposed. The regulations could thus be drawn up 
and enforced by administrative officials without the necessity 
of having them take the more rigid form of laws, and without 
giving rise to a right of appeal to the courts by persons ac- 
cused of violating them. The prediction has been made that 
the manifest advantages attending this method of control during 
the war will cause it to be resorted to by the Government when 
called upon to bring industrial interests under greater control.^ 
Control through subsidiary corporations. The second of 
these devices consisted in the establishment of subsidiary cor- 
porations for the performance of certain specific activities. 
The work of several of these corporations has already been 
referred to in connection with the new power entrusted by 
Congress to the executive department. Their advantages as 
administrative agencies are described as consisting in the definite 
segregation of the particular service, both financially and ad- 
ministratively, from all other services, so that the particular 
enterprise will have its own property, its own revenues and 
expenditures, and its own accounting and reporting system. 
An enterprise producing revenue should have a system of profit 
and loss accounts similar to that of the ordinary private corpor- 
ation, and for this purpose it should have financial autonomy. 
Moreover the corporate form of organization facilitates the 
handling of contractual relations with outside parties to 
better advantage; it admits of the appointment of a board of 
directors chosen with special reference to their technical com- 
petence ; and it keeps the service on a purely business basis 
outside the pressure of partisan politics.^ The interest attach- 

^ W. F. Willoughby, " Government Organization in War Time and 
After," p. 355. 

2 Ibid., p. 356. The subject is treated in greater detail in Chap. V of 
the " Problem of a National Budget," by the same author. 



202 POLITICAL SYSTEMS IN TRANSITION 

ing to this form of administrative agency is not merely due 
to its unusual character, but to the probability of its future use 
by the Government in the handling of industrial problems. At 
the present moment, for example, there is before Congress a 
plan advanced by the Railway Brotherhoods and endorsed by 
the American Federation of Labor, which proposes that the rail- 
ways of the country be purchased by the Government and their 
operation be entrusted to a private corporation, run by the em- 
ployees, which is to pay the Government a rental out of the 
receipts of operation.^ 

1 A convenient reference manual of the agencies created during the 
war for the administration of the varied activities of the Government 
may be found in " A Handbook of the Economic Agencies of the War 
of 1917," prepared in the Historical Branch, War Plans Division of 
the General Staff iQig 



CHAPTER IX 

THE SEPARATE STATE GOVERNMENTS. NEW LEGISLATION 
AND NEW ADMINISTRATIVE ACTIVITIES 

The relation of the separate state governments to the 
war. The burden of conducting the war fell naturally 
upon the Federal Government, for to it was confided by the 
Constitution the task of raising and supporting armies and its 
chief executive was constitutional commander-in-chief. In a 
war of smaller dimensions, such as that with Spain in 1898, 
it might well have been possible for the separate state govern- 
ments to remain entirely unaffected by the conflict, and to do 
no more than acquiesce in such limited war measures of the 
Federal Government as the incorporation of their state militia 
into the federal forces. But the recent war, in calling for the 
mobilization of the man power and the industrial resources of 
the entire nation, left no corner of the country's life untouched, 
and the state governments necessarily felt the pressure of its 
demands. In the first place the state governments were called 
upon to yield to the encroachments upon their authority and 
jurisdiction involved in the assumption by the Federal Govern- 
ment of the wide range of powers which have been described 
in the preceding chapter. In the second place the exceptional 
demands created by the war led the state legislatures to enter 
new fields of legislation in order to supplement the measures 
taken by the Federal Government and to meet more satis- 
factorily the special local conditions which were beyond the 
reach of the federal laws. In the third place the necessity of 
securing cooperation between the separate executive depart- 
ments of the state governments, and between the state execu- 
tives as a body and the federal executive department, led to the 
establishment of new and more intimate relations between these 
distinct agencies of government, and tended to break down the 

203 



204 POLITICAL SYSTEMS IN TRANSITION 

barriers of isolation which have long been a characteristic of 
American local government. In many instances the Federal 
Government found it convenient to fall back upon the govern- 
mental machinery of the States for the enforcement of new 
regulations hitherto not within the scope of the activities of 
the central govermnent. 

Subordination of state authority to federal. Jurisdiction 
over persons. The dividing line between the powers of the 
central government and those of the separate states, as estab- 
lished by the Constitution, has never been entirely clear, but 
during the course of decades of constitutional interpretation by 
the courts a fairly satisfactory basis for the adjustment of dis- 
putes of jurisdiction has been worked out. Where state and 
federal jurisdiction overlap the practical rule has been adopted 
that the State may enact legislation valid within its borders 
until Congress decides to enter the field, when the local laws 
must give way to the national law in so far as the former 
are inconsistent with the latter. In many cases, as in that of 
the Food and Drugs Act of 1906, the federal legislation may 
in no way conflict with state legislation, or may either supple- 
ment it, where the state legislation is less comprehensive than 
the federal law, by restricting importations from other states, 
or, where the reverse is the case, merely assist in the enforce- 
ment of the state law against importations from other states. 
In normal times few controversies have arisen except those in 
connection with the power of Congress over commerce between 
the States, but there has been on the whole a steady increase 
in the scope of the authority of the Federal Government. With 
the outbreak of the war the States found themselves obliged 
to surrender a far wider range of jurisdiction than had ever 
been demanded of them at any time in the past history of the 
country. The powers assumed by the President as commander- 
in-chief of the army and navy intruded upon the civil and 
criminal jurisdiction of the state courts; while cantonments 
were built in a number of the States and formed as it were 
federal cities, not unlike the District of Columbia, which re- 



THE SEPARATE STATE GOVERNMENTS 205 

mained outside the control of the State. The troops in train- 
ing in these camps continued to remain subject to the jurisdic- 
tion of the Federal Government even when visiting neighboring 
cities on leave of absence, and special military police patrolled 
the railway stations and other centers of city life. In certain 
cases, as we have seen, the. authority of the War and Navy 
Departments was extended even to the point of demanding of 
a city that it reform its government and suppress immoral con- 
ditions which were a danger to the health and morale of the 
federal troops temporarily present in the city. Moreover, in 
the interest of protecting the material welfare of the men drawn 
into the federal army, Congress undertook to interfere with 
the normal operation of legal procedure in the States, and to 
suspend the judgments of state courts in cases where the fail- 
ure of the defendant to appear in court to answer to a suit 
was due to his being in the military service of the United 
States. The process of eviction for failure of the family of 
a soldier to pay rent was suspended, and installment contracts 
were subjected to special limitations in favor of the party in 
military service. In these and other ways the normal jurisdic- 
tion of the State over all persons within its borders was seri- 
ously restricted. 

Loss of state control over railroads. The extension of 
federal control over the railway systems of the country neces- 
sitated the surrender by the States of their power of control 
over transportation within the State in so far as such trans- 
portation formed a necessary link in the chain of commerce 
between the States. Here it is of interest to note that the 
dual system of government in the United States has resulted 
in a form of divided control over the railways which has been 
at once a source of embarrassment to the railways themselves 
and an obstacle to efficient regulation in the interest of the 
public. The Interstate Commerce Commission has long sought 
to reconcile the conflicting jurisdictions of the Federal Govern- 
ment and of the several States, and the railroads have freely 
asserted their desire for centralized control in preference to 



2o6 POLITICAL SYSTEMS IN TRANSITION 

the rule of their " forty-nine masters," the individual state 
railway commissions added to the federal commission. With 
the assumption of federal control over the railways in Decem- 
ber 1917, the state railway commissions retired temporarily 
from business, and special state laws regulating rates and service 
within the states were suspended in their operation pending the 
return of the railways to their former owners. The federal 
railway director general was thus given the opportunity not only 
to prove the economic advantages of a unified system as against 
isolated competing lines, but at the same time to demonstrate 
the administrative advantages of a single centralized control as 
against the former combination of federal and state control. 
In like manner the control assumed by the Federal Govern- 
ment over the telegraph and telephone lines necessitated the 
abandonment of the power of the state public service com- 
missions over those services within the state borders, and re- 
duced the functions of the latter bodies to the regulation of 
local public utilities.^ 

Encroachments of the Food and Fuel Control Act. The 
price-fixing powers of the federal Food and Fuel Control Act 
invaded the domain of state legislation at numerous points. 
In normal times the determination of a maximum price for 
wheat would have been within the competence of the several 
state legislatures alone, and could not even have been indirectly 
undertaken by the Federal Government through its power over 
interstate commerce. The licencing of food dealers by the 
Food Administration and the penalty imposed of withdrawing 
the licence for failure to comply with the regulations prescribed 

1 In two instances the power of Congress to exercise exclusive juris- 
diction over the railroads and telegraphs was contested by state public 
utilities commissions which sought to enjoin the companies in question 
from enforcing rates different from those already established. The 
Supreme Court held that the action of the Federal Government was a 
legitimate exercise of the war power and that a State had no right to 
interfere with its measures of control. Northern Pacific Railway v. 
North Dakota, 250 U. S., 135; Dakota Central Telegraph Company v. 
South Dakota^ 250 U. S., 163. 



THE SEPARATE STATE GOVERNMENTS 207 

constituted an assumption of combined legislative and executive 
functions v^diich, but for their exceptional justification as war 
measures, would have been strictly within the jurisdiction of 
the state governments. Similarly, the fixing of prices for 
various grades of coal, the restrictions placed upon the use of 
coal for purposes not deemed essential by the Fuel Administra- 
tion, the decree that non-essential factories be closed on Mon- 
days during a critical period, and the qualified compulsion exer- 
cised in the form of withdrawing supplies altogether, were 
all acts normally within the sphere of government reserved 
to the several States. The same is to be said of the allotment 
of the raw materials of industry among producers according 
to the character of the industry, and the determining of prior- 
ities in respect to inland transportation and shipping. Some 
of these acts were, of course, beyond even the power of the 
state legislatures to prescribe without a previous amendment 
to the state constitution authorizing the assumption of such 
control over private industry. It was the urgent necessity of 
the situation which not only led public opinion to acquiesce in 
the subordination of state interests to national interests, but 
secured its assent to the invasion of those private rights of the 
individual citizen which it is one of the characteristic func- 
tions of an American state constitution to protect. The strik- 
ing nature of the invasion of the domain of state legislation by 
the war measures of the Federal Government may be seen in 
the fact that in the opening months of the war the Supreme 
Court of the United States rendered a decision nullifying the 
Federal Child Labor Law as being an unconstitutional exten- 
sion of the powers of the Federal Government over interstate 
commerce into the reserved sphere of state government, while 
at the same time Congress and the President, in the exercise 
of " war powers," were setting up machinery of control a 
hundredfold more comprehensive in its encroachments upon 
normal state life. 

Federal prohibition legislation and the States. One 
further war measure of the Federal Government which caused 



2o8 POLITICAL SYSTEMS IN TRANSITION 

a serious conflict with the normal rights of the state govern- 
ments, and which led to complications of jurisdiction that are 
still ^ being felt, was the enactment by Congress of legislation 
restricting the manufacture and sale of intoxicating liquors. 
The Food and Fuel Control Act carried with it a rider pro- 
hibiting the use of food materials in the production of dis- 
tilled liquors and at the same time authorizing the President 
to apply at his discretion the same restrictions to the production 
of beers and wines. This measure was followed by a more 
drastic provision, annexed as a rider to the Food Stimulation 
Act of November 21, 191 8, which forbade the use of food- 
stuffs in the production of beer, wine, or other " intoxicating " 
malt or vinous liquors after May i, 1919, and until the end 
of demobilization, and the sale of such liquors after June 30, 
1919, and until the end of demobilization. This provision, 
known as the War-time Prohibition Act, was in every respect 
a prohibition and not a food conservation measure, and was, 
as we have seen above, an attempt to force upon the States 
which had not adopted prohibition laws a temporary regime 
of prohibition pending the ratification of the amendment to the 
Federal Constitution. Congress, however, failed to define the 
scope of the word " intoxicating," with the result that dealers 
in the " wet " States were at first at a loss to know what per- 
centage of alcohol rendered a beverage intoxicating, and they 
finally obtained different rulings on the subject from their re- 
spective state governments. Evasions of the law were numer- 
ous, owing to the fact that no adequate machinery for the en- 
forcement of the law had been provided by Congress, and the 
officials of the "wet" States were naturally somewhat indif- 
ferent to the observance of a law which they believed to be 
in fact, if not in law, a contravention of the constitutional 
rights of the States. The subsequent passage by Congress of 
the Volstead or National Prohibition Act of October 28, 1919, 
settled the question of the alcoholic content of intoxicating 
liquors. While declaring the act constitutional the Supreme 

^October, 1919- 



THE SEPARATE STATE GOVERNMENTS 209 

Court, however, dismissed the suits brought by the Government 
against the dealers who, prior to the passage of the act, had 
manufactured and sold beers and wines with a larger percentage 
of alcohol than that laid down in the act as constituting an in- 
toxicating liquor.^ 

Enlarged scope of state activities. But if the war had the 
effect of restricting the sphere of the normal jurisdiction of 
the States, it at the same time led the States to enlarge the 
range of their local activities and to enter new fields of 
legislation hitherto closed to them. These new activities of 
the state governments were partly the result of a desire to 
cooperate wdth the Federal Government in the enforcement of 
laws and regulations for which the machinery of the Federal 
Government was inadequate, and partly the result of a de- 
mand on the part of the public for a greater measure of pro- 
tection against domestic violence and against economic op- 
pression arising out of the exceptional conditions created by 
the war. It has been pointed out above that the dividing line 
between the powers reserved to the state governments by the 
Constitution and those delegated to the Federal Government 
is not at all points a clear one, but that satisfactory adjust- 
ments have been worked out by the courts to answer the diffi- 
culties that have from time to time arisen. The abnormal 
conditions which grew out of the war not only threw these 
older adjustments out of balance, but called for new 
adjustments to meet the new situations. The result was 
that the " constitutional unpreparedness " of American democ- 
racy manifested itself quite as much in the difficulty experienced 
by the parts of the federal state in cooperating efficiently with 
the central government, as in the failure of the people at large, 
by reason of being unaccustomed to discipline, to respond im- 
mediately to the demands made upon them. The latter fail- 
ure was, as we have seen, in a large measure made good in 

1 United States v. Standard Brewery, decided January 5, 1920. For 
the constitutionality of the War-time Prohibition Act and the Na- 
tional Prohibition Act, see above, pp. 154-157. 



2IO POLITICAL SYSTEMS IN TRANSITION 

time, and voluntary agencies were created to do the work 
which an autocratic government might have done through com- 
pulsory agencies. The difficulty experienced by a decentral- 
ized form of government was likewise overcome in time but 
to a less satisfactory degree, owing not so much to the lack 
of a desire on the part of the States to cooperate with the 
Federal Government, as to the obstacles inherent in the ex- 
istence of isolated state units. Each of the forty-eight state 
constitutions contained a variety of restrictions upon the powers 
of the state legislature and embodied its own conception of 
the limits to which the state government might go in restrict- 
ing the freedom of its citizens. At the same time the state 
legislatures did not possess the sweeping grant of power con- 
tained in the clause of the Federal Constitution empowering 
Congress " to raise and support armies." 

Organization of Reserve Militia and State Constabularies. 
In order to meet the emergency caused by the transfer of the 
state militia into the national army many States found it neceS' 
sary to create special reserve forces for the maintenance of law 
and order at critical times. These bodies were known as Home 
Guards, State Guards (by contrast with the National Guard 
or former state militia). State Defense Guards, State Reserve 
Militia. They were as a rule recruited by voluntary enlist- 
ment, and varied in number in the different States. In Mary- 
land provision was made that if the number of volunteers was 
inadequate, male citizens might be drafted to the number re- 
quired. The duties of these home guards were generally con- 
fined to calls for emergency service in cases where the local 
police force was inadequate to preserve the peace, but in some 
States they were assigned the wider functions of enforcing 
the laws of the State. The same circumstances, however, 
which called for the creation of the reserve militia gave an 
impetus to the movement already in progress of establishing 
permanent state constabulary forces, or " military police," to 
act as a flying corps at the disposal of the governor for the 
enforcement of the law. Pennsylvania had led the way in 



THE SEPARATE STATE GOVERNMENTS 211 

1906 by the creation of such a body, modeled on the Canadian 
northwestern mounted police, and consisting of four troops 
of fifty men each. In 1917 New York, South Dakota, Rhode 
Island, Connecticut, and other States established similar bodies, 
and in 1918 Oregon followed suit; while New Jersey failed 
to secure popular assent to a bill submitted to a referendum. 
Texas organized a Rangers' Home Guard of 1000 men to pro- 
tect its border against raids from Mexico. In States where 
there is no such constabulary force the governor is obliged 
to rely for the enforcement of the law upon the local sheriffs 
and constables in the rural districts and upon the municipal 
police in the cities. Only in the event of a riot or of organized 
resistance to the law is it feasible to call out the state militia, 
and in many instances the delays incident to drawing civilians 
from their ordinary pursuits have had serious results. The 
existence of a professional state guard, although small in num- 
ber, would make it possible for the governor to suppress dis- 
turbances in their incipient stages.^ In addition to creating 
these state guards, some States authorized their cities to ap- 
point special emergency police and provided for the formation 
of county guards and volunteer fire companies. 

State aid in the administration of the Selective Service 
Act. The adoption of the Selective Service Act was the most 
dramatic and at the same time the most far-reaching measure 
taken by the Federal Government for the successful prosecu- 
tion of the war. Yet it was a measure for which the existing 
machinery of the Federal Government was completely inade- 

1 The opposition to the creation of State constabulary forces has 
come chiefly from the labor unions, which fear that the troops will be 
used to interfere with strikes by preventing picketing and breaking 
up meetings of the workers; whereas local police and the unpro- 
fessional state militia may be expected to show greater sympathy 
with the strikers and to act with less determination. The recent ex- 
periences of the steel strikers in Pennsylvania have tended to justify 
this attitude. The answer should be, not the abolition of the State 
constabulary, but the enactment of legislation to replace the present ar- 
bitrary practice of the courts in issuing injunctions in labor disputes. 



212 POLITICAL SYSTEMS IN TRANSITION 

quate, and which must therefore have caused great confusion 
in its enforcement and great injustice to individuals had it not 
been possible for the Federal Government to call upon the as- 
sistance of the state authorities and their subordinate local 
agencies. The administration of the draft was, in accordance 
with the terms of the act, carried out by means of a large num- 
ber of draft boards, one in each county or " similar subdivision " 
in each state, and one for approximately each 30,000 of popula- 
tion in each city of 30,000 or over. The act provided that 
the boards should be appointed by the President, and should 
consist of three or more members, none of whom should be 
connected with the military establishment, to be chosen " from 
among the local authorities of such subdivisions or from other 
citizens residing " therein. The object of this provision was 
obviously to secure men who were familiar with local conditions, 
and who would either know personally the circumstances of the 
cases that came before them or else be in a position to obtain 
first-hand knowledge from others. Since the boards were com- 
posed in many cases of political leaders, there were from time 
to time charges of favoritism in respect to exemptions from 
service where pressure could be brought by influential persons. 
In a few instances legal proceedings were brought against in- 
dividual members of the boards ; but in comparison with the 
immense volume of work performed by the boards these 
isolated charges are a striking testimony to the general fair- 
ness with which their rulings were made. Owing to differences 
of temper and of judgment in the membership of the various 
boards it was inevitable that exemptions should be granted in 
one locality and refused on the same grounds in another. The 
circumstances calling for exemption were infinite in variety, 
and it was in the nature of things impossible to apply in a 
hard and fast manner the instructions sent out by the office 
of Provost Marshal General E. H. Crowder, who was in charge 
of the entire draft system. In a large measure the divergencies 
of the local boards were rectified by the district boards of ap- 
peal which were appointed by the President in each federal 



THE SEPARATE STATE GOVERNMENTS 213 

judicial district. These district boards were authorized by 
the act to " review on appeal and affirm, modify, or reverse 
any decision of any local board " having jurisdiction within 
the district, and to hear cases not included in the jurisdiction 
of the local boards. Their decisions were final, subject only 
to the right of the President to permit an appeal. It should 
be noted that the appointments of the President were made 
in accordance with recommendations of the state governors, 
so that the fullest cooperation between the national and the 
state governments was thereby obtained.^ 

Miscellaneous laws in aid of men in service. As an item 
in a general program of preparedness military instruction had 
been provided for in several States even before the declaration 
of war, while other States hastened to adopt a similar program 
for the succeeding school year. These measures were later 
supplemented by the action of the War Department in estab- 
lishing units of a Students' Army Training Corps in all of 
the colleges and universities which had a minimum enrollment 
of over one hundred students above high school grade. The 
students joining this corps became active members of the army 
on active duty and subject to military discipline. Their hous- 
ing, subsistence and instruction were provided for by the 
several institutions under contract with the Government. 
Several States enacted laws providing for temporary financial 
relief for the families of enlisted or drafted men in cases of 
need. In New York State the legislature authorized cities, 
counties, and villages to provide financial aid for the families 
of enlisted men ; in Maine the families of volunteers were sup- 
ported partly by state aid and partly by aid from the county 
or city of their residence; while Vermont paid state pensions 
to the dependents of members of the national guard. The 

1 For further details of the work of the local and district boards, see 
the Second Annual Report of the Provost Marshal to the Secretary of 
War, pp. 268, 276. A valuable survey of the administration of the 
Selective Service Act may be found in " The Spirit of Selective Ser- 
vice," by Maj. Gen. E. H. Crowder. 



214 POLITICAL SYSTEMS IN TRANSITION 

passage of the federal War Risk Insurance Act, with its al- 
lotment and allowance provisions, removed the necessity for 
state aid to a large degree, and probably explains the failure of 
the States as a body to pass remedial legislation. Several 
States in which the sale of intoxicating liquors was still legal 
passed laws forbidding the sale of liquor near military camps. 
In Maryland provision was made for a dry zone within two 
miles of any camp, and special police were appointed to patrol 
it. A few States anticipated the moratory and stay law of 
Congress by their own moratory and stay laws, in accordance 
with which suits begun against enlisted men during the war 
were suspended until six months after the war, and debts owing 
by them could not be collected during the continuance of the 
war. In several States special measures were taken to assist 
men absent in military service. In North Carolina Soldiers' 
Business Aid Committees were appointed by the county councils 
to render help in the management of their business affairs ; 
while in Wisconsin the state council proposed that there should 
be appointed a " home soldier " to watch over the interests of 
each soldier in service abroad and to be in general his per- 
sonal representative. In a number of the States steps were 
taken in the form of constitutional amendments and legisla- 
tive enactments to permit absent voting of men in military 
service. Application was made by the state officers to the 
Adjutant-General to have the vote taken in the camps, per- 
mission being granted when it did not cause serious interference 
with military efficiency. 

Laws in aid of food and fuel conservation. We have 
seen above that the Food Survey Act and the Food and Fuel 
Control Act laid the basis of a national policy of food and fuel 
conservation, and that federal agencies were created to secure 
its enforcement. But in this instance, as in many of its other 
war measures, the Federal Government was unable to accom- 
plish more than half its purposes by its own direct enactments. 
Lack of administrative machinery, as well as past traditions of 
more restricted functions, made it impossible for the Government 



THE SEPARATE STATE GOVERNMENTS 215 

to do more than frame regulations which could be enforced uni- 
formly throughout the country without undue friction. Will- 
ing as the people of the States might be to cooperate with the 
Federal Government, it was politically inexpedient for Con- 
gress to subject them to general federal laws which might be 
unsuited to their particular local needs. In consequence the 
state governments found it necessary to pass local laws supple- 
menting the federal law. These laws were of the widest 
variety and in one State or another dealt with the increase 
of production of farm crops, the marketing of farm products, 
the prohibition of storing or hoarding foodstuffs so as to cor- 
ner the market and enhance the price, the establishment of 
municipal markets for the purchase and distribution of food 
supplies, the adoption of cooperative agricultural projects, and 
the prohibition of conspiracies to limit the output or control 
the price of coal. In addition to these and other measures 
valid only within their several state boundaries, the state 
governments rendered valuable assistance to the Federal Gov- 
ernment in the administration of the federal law. The federal 
food administrator announced at the outset of the undertaking 
that the administration could only be carried out through the 
coordination of existing legitimate agencies and through the 
services of volunteer workers. In the selection of these 
agencies and of the local food administrators, as well as in the 
enforcement of the regulations adopted, the cooperation of 
the state governments made it possible to carry through a most 
elaborate program with the least possible friction and a mini- 
mum of expense. 

Laws to meet labor problems. We have seen the meas- 
ures taken by the Federal Government to mobilize the labor 
required for munition works and other war industries, as well 
as the variety of mediation and arbitration commissions created 
to adjust labor disputes and prevent the recurrence of strikes. 
But while the measures of the Federal Government were 
limited in their scope to the problem of labor in essential war 
work, a number of the individual States took drastic measures 



2i6 POLITICAL SYSTEMS IN TRANSITION 

to remedy the general shortage of labor due to the operation of 
the draft law and to the rush of labor to the more highly paid 
war industries. Maryland, West Virginia, and Kansas led 
the way in 1917 with " work or fight " laws, and a number 
of other States followed suit in 1918. The Maryland law re- 
quired the registration of able-bodied men between eighteen 
and fifty years of age who were not usefully employed, and 
authorized the governor to assign them to some public or private 
employment; failure to register or to do the work assigned 
was punished by fine or imprisonment ; no exception was made 
between rich and poor, but students and strikers were ex- 
cepted. The West Virginia law made each week of idleness a 
separate offense. The Kansas law defined vagrancy to in- 
clude refusal to accept employment. The Kentucky law re- 
jected the plea of inability to obtain work as a defense, but 
other states recognized the possibility of inability to secure 
employment and merely required, as in New York and Mas- 
sachusetts, that persons should apply to a designated public 
agency to secure employment. South Dakota granted to the 
state Council of Defense the power to " impress " into public 
or private service all unemployed persons. Nebraska reached 
the same object by defining sedition to include habitual idle- 
ness or refusal to accept obtainable work. Distinct in purpose 
from the above legislation relating to compulsory work were 
the laws, such as that of Vermont, which suspended the opera- 
tion of the existing statutes relating to hours of employment of 
women and children during the continuance of the war. These 
laws were severely criticised by persons interested in social 
reform as being likely to result in harm to the women and 
children which would more than counterbalance the increased 
supply of labor. In several States provision was made that 
children might be released from attendance at school without 
loss of standing if they were engaged in farm work. 

Laws to assist in Americanizing immigrants. The out- 
break of the war found among the citizen body of the United 
States many millions of unnaturalized foreigners upon whose 



THE SEPARATE STATE GOVERNMENTS 217 

allegiance the United States had no legal claim. Many more 
persons of foreign birth had been naturalized during a longer 
or shorter number of years, but had never been won over to a 
feeling of affection for the institutions of the country or to 
a sense of the obligations of citizenship. The presence of a 
large number of these persons in the training camps and the 
high percentage of illiteracy among them drew public atten- 
tion to the urgent necessity of taking steps to bring the for- 
eign-born population, numbering some thirteen millions, into 
closer touch with American ideals and American political insti- 
tutions. In consequence the Council of National Defense an- 
nounced in December, 1917, a national program of Americani- 
zation, and called upon the state Councils of Defense to as- 
sist in putting it into effect. The States were urged to pass 
legislation requiring the attendance of non-English-speaking 
and illiterate persons between sixteen and twenty-one years of 
age at some school or other educational agency under public 
supervision. Communities in which there was a large propor- 
tion of immigrants were urged to establish factory classes and 
night schools for their education, and stress was laid upon 
the training of special teachers and the coordination of im- 
migrant education under a state supervisor. In response to 
this appeal a large number of the States organized state com- 
mittees on Americanization and prepared elaborate programs 
of educational facilities to be offered. New York established 
a teachers' training institute and formulated plans for instruc- 
tion in industrial plants. California was not content to carry 
on the work of education in the schools, but by the passage of 
a Home Teacher Act provided for bringing instruction in 
English and civics, sanitation and other subjects into the homes 
of the immigrants. Arizona passed a law providing that in 
any school district where fifteen or more persons resided who 
were unable to read, write, or speak English and who wished 
to attend night school, the board of trustees should establish 
such a school, in which not only the language but " American 
ideals and an understanding of American institutions " should 



2i8 POLITICAL SYSTEMS IN TRANSITION 

be taught. In April, 1918, an Americanization conference was 
held in Washington which was attended by governors and their 
representatives from twenty-two States, together with other 
state officers and educators. Legislation was recommended 
providing for a national program of Americanization, and a 
committee was appointed to urge Congress to take action.^ 

State espionage and sedition laws. The Espionage Act and 
its amendment, the Sedition Act, passed by Congress in June, 
1917, and in May, 1918, attempted, as we have seen, first to 
prevent interference with the draft law, and secondly to check 
utterances or publications of a treasonable or seditious char- 
acter. These measures were supplemented in a number of 
the States by special legislation looking to the enforcement 
of the federal law, whether by making the same act an offense 
against state law as well, or by extending the scope of the 
prohibition so as to cover conditions peculiar to the individual 
state. Illinois and Minnesota, for example, made it a mis- 
demeanor to interfere with or discourage men from enlisting 
in the military or naval service of the United States. Wis- 
consin and New Jersey penalized the act of advising any per- 
son in the State who was of military age not to enlist. Iowa 
made it a felony to excite sedition or insurrection or to ad- 
vocate the subversion or destruction of the Federal or state 
Government by force, and made it a misdemeanor to be a mem- 
ber of or to attend a meeting or council of any treasonable 
organization, society or order. New Jersey made similar con- 
duct a " high misdemeanor." Texas punished the uttering or 
publishing of seditious language, which was defined as that 

1 See the "American Year Book," 1918, p. 797-799- The subject is 
treated in detail in the volume on " The War and the Alien " in the 
present series. 

On January 16, 1920, the Senate began discussion of the Kenyon 
Americanization bill, the object of which is to combat radical ideas 
by means of education instead of repression. The bill proposes to 
enlist the cooperation of the States with the Federal Government by 
teaching English to immigrants and by giving them a knowledge of 
the spirit and purpose of American institutions. 



THE SEPARATE STATE GOVERNMENTS 219 

which was disloyal, abusive, or calculated to bring into dis- 
repute the United States, its military forces or flag, or its entry 
or continuance in the war. Abuse of the flag was penalized 
in a number of the States, in some instances by the enact- 
ment of new laws and in others by the amendment of existing 
laws. 

Laws to assist in controlling enemy sympathizers. A 
number of the States undertook to pass special legislation look- 
ing to assist the Federal Government in keeping a closer control 
over enemy aliens and others whose sympathies might be on the 
side of the enemy. Iowa, New York, Connecticut, Florida, 
Maine, and other States supplemented the federal registration 
law by requiring enemy aliens to register upon notice by the 
governor and requiring hotels and boarding houses to report 
alien guests and subsequent arrivals and departures of aliens. 
A Massachusetts " True Name " hotel law, not aimed directly 
against the alien, but doubtless having the alien chiefly in 
mind, provided that landlords of hotels and lodging houses 
must keep a register in which every person who rented a room 
must write his true name and place of residence and the true 
name and residence of every other occupant of the room ; both 
landlord and occupant being subject to a fine for failure to com- 
ply with the law. Vermont penalized heavily the possession of 
military maps and plans, the furnishing of military informa- 
tion and the injuring of public property, providing that if the 
offense were committed under circumstances amounting to 
treason, the punishment should be for the latter crime. Min- 
nesota prohibited enemy aliens from having firearms, explo- 
sives or the ingredients of explosives in their possession, or 
to hunt, capture, or kill any game except in self-defense. 
Maine enacted special regulations concerning the storing and 
sale of dynamite, powder, and other explosives. New York 
authorized the attorney-general to conduct secret investiga- 
tions to ascertain the loyalty of persons under suspicion, and 
at the same time authorized the governor to suspend the right 
to fish, boat, or cut ice on any lake, reservoir, or other lands 



220 POLITICAL SYSTEMS IN TRANSITION 

or waters owned or controlled by the city of New York, Illi- 
nois, Elaine, Maryland, Rhode Island, Vermont and other 
States enacted criminal legislation covering the act of destroy- 
ing or molesting munition plants, armories, gas, electric, tele- 
graph and telephone plants, sources of food or water supply, 
bridges, railways, and other works necessary to the successful 
prosecution of the war. 

Laws directed against syndicalists and other radical 
groups. Special legislation was passed in a number of the 
states to place a check upon the activities of members of the 
I. W. W. and other radical organizations, whose political and 
economic doctrines led them not only to oppose the war, ir- 
respective of their nationality, but to adopt means of the most 
subtle character to hinder its prosecution. Sabotage has long 
been one of the recognized means by which these organizations 
have sought to obstruct and ultimately overthrow the existing 
private ownership of the instruments of production. The 
favorable conditions created by the war for the practice of this 
form of " direct action " made it necessary for the States in 
which tliese radical groups were numerous to take steps to 
thwart their secret methods. Several of the northwestern 
States defined criminal syndicalism as the doctrine advocating 
sabotage, crime, violence or terrorism as a means of accomplish- 
ing industrial reform, Idaho specially mentioning the act of 
placing or inserting rocks or metallic substances in saw logs. 
Montana penalized the owner of a building who knowingly 
permitted a criminal syndicalist meeting to be held upon the 
premises. North Dakota defined " sabotage in the first de- 
gree " as including setting on fire food for man or beast or 
buildings where food was stored or poisoning work or food 
producing animals in order to hinder the owner's food produc- 
ing operations. " Sabotage in the second degree," to which 
a lesser penalty was attached, included the attempt to commit 
sabotage in the first degree, as well as the hindering of harvest- 
ing or threshing crops by injury to machinery by placing for- 
eign substances in the grain to be harvested or threshed. South 



THE SEPARATE STATE GOVERNMENTS 221 

Dakota specified the criminal use of any liquid, chemical, 
mechanical apparatus, current or other device in the destruc- 
tion or attempt to destroy life or property.^ 

Sta1?e Councils of Defense. Owing to the subordinate part 
played by the States in the prosecution of the war it was not 
found necessary to introduce any important changes into the 
organization of their governments. There were no " war 
powers " to be assumed by the state governors, and no such 
burdens were thrown upon them as to require the passage of 
state legislation similar to the provisions of the Overman 
Act, One important modification was, however, introduced 
into the organization of the state governments by the creation of 
the State Councils of Defense. Upon the outbreak of the war 
the Council of National Defense, which, as we have seen, had 
been created by Congress to coordinate the industries and re- 
sources of the country for the national defense, established a de- 
partment to coordinate the defense activities of the several 
States. This department subsequently developed into the Sec- 
tion on Cooperation with States. The aim of this body was to 
act as a clearing house in which the appeal for guidance from 
the various associations engaged in war work in the States could 
be met by the suggestion of a uniform general policy, while 
preserving the principle of decentralization in the actual duties 
performed. On April 9, 191 7, the Secretary of War issued 
a request to the state governors that state councils should 
be created to cooperate with the national council in Washing- 
ton. Some weeks later, at the invitation of the chairman of the 
national council, a conference of the States, consisting of gov- 
ernors and representatives appointed by them, met in Wash- 
ington to draw up plans of coordination between the central 
body and the separate state units. Two months later every 

1 As in the case of the federal Espionage and Sedition laws the after- 
math of this war-time legislation has been the proposal of a number of 
bills directed towards suppressing the advocacy of radical methods of 
bringing about a change in the Government. The most conspicuous 
of these measures have been the Lusk bills, passed by the New York 
legislature, but vetoed by the Governor. 



222 POLITICAL SYSTEMS IN TRANSITION 

State had organized its own council of defense. At the same 
time the process of administrative decentralization was car- 
ried still further by the creation in each State of county coun- 
cils with subordinate municipal and community councils. The 
smallest unit of the system, the community council, was the 
community itself organized for service in local areas such as 
the school district or in some States, the township. These local 
councils became the final link between the Federal Government 
and the individual citizen. 

Composition and powers of the state councils. In a num- 
ber of States where the state legislatures were in session, the 
state councils were established by a formal legislative act, 
and appropriations were made to enable them to carry on the 
activities mapped out for them. In other cases the councils 
v^rere established by decree of the state governor and be- 
came personal agencies attached to the executive department. 
In the number of their members the councils varied from half 
a dozen to more than a hundred appointees. In some cases 
they were composed, like the Council of National Defense, of 
ex-officio state officers with the governor as chairman ; but 
more often their membership was drawn from among the prom- 
inent business and professional men of the State, who served 
without pay and without definite tenure of office. Their 
powers, while of the same general character in the different 
States, varied widely in extent. Most of the councils were 
limited to advisory functions. They were called upon, as in 
the case of the California council, to make investigations into 
the effect of the war upon the civil and economic life of the 
people, to recommend to the governor measures to provide for 
the public security, the protection of the public health, and the 
development of the economic resources of the State. But in 
a smaller number of the States the councils were given ex- 
tremely wide powers, extending in West Virginia to the regula- 
tion of mines, factories and railroads, the fixing of prices, and 
the suppression of disorder; in Wisconsin to the control of 
food and fuel supplies ; and in Minnesota to the protection of 



THE SEPARATE STATE GOVERNMENTS 223 

life, liberty, and property, by the adoption of broad measures 
not inconsistent with the law. 

Work of the State Councils Section of the Council of Na- 
tional Defense. The palicy pursued by the State Councils 
Section (formerly the Section on Cooperation with States) 
of the Council of National Defense was to transmit to the 
state councils requests for assistance in various matters, leav- 
ing it to each state council to develop the means of providing 
this assistance in the light of its intimate knowledge of local 
conditions. Requests for direction and offers of assistance 
from any individual or association within the State were re- 
ferred by the central body to the state council. Moreover, 
the central body endeavored to have the departments and war 
administrations of the Federal Government conduct through the 
state councils of defense all activities in the several States 
suited to the decentralized character of the state council sys- 
tem. At the same time the State Councils Section acted as an 
informal supervising agency to correlate the activities of the 
state councils and to take the initiative in mapping out new 
lines of work. Through its directive influence many valuable 
suggestions bearing upon all phases of war work, such as the 
care of the dependents of men in military service, the conserva- 
tion of food, the maintenance of proper labor standards, and the 
treatment of foreign-born citizens, were transmitted to every 
part of the country, and it was thus possible to carry out ef- 
fectively national policies with the aid of local machinery. On 
the whole the work of the state councils of defense, under the 
guidance of a centralizing body, furnishes an admirable ex- 
ample of the possibility of attaining in time of great emergency 
that cooperation between the States and the National Govern- 
ment the lack of which has been one of the weakest features 
of American Federal Government. Whether it is possible to 
secure a similar cooperation in time of peace for other objects 
in which national unity is desirable without sacrifice of local 
autonomy is a problem for the present age of reconstruction. 

Conferences of State Governors. In connection with the 



224 POLITICAL SYSTEMS IN TRANSITION 

necessity created by the war of securing a fuller measure of 
cooperation between the separate States and the Federal Gov- 
ernment, attention must be called to an institution already in 
existence known as the " Governors' Conference." In 1908 
President Roosevelt called a Conference of Governors at the 
White House in the interest of securing their cooperation in 
the conservation of the national resources of the country. This 
meeting proved to be a first step in the organization of a perma- 
nent institution which promised to have important effects in the 
development of closer relations between the separate state 
governments. Provision was made for the call of periodic 
meetings, and a second conference met in Washington in 1910. 
Thereafter annual conferences met to discuss what might be 
called local matters of general interest to all the states individ- 
ually, in contradistinction to the national matters of interest to 
the people collectively, which fall, subject to the limitations of 
the Constitution, within, the jurisdiction of the Federal Govern- 
ment. The Governors' Conferences, however, disappointed the 
promise of their formation, and failed to meet adequately the 
need of that more immediate bond of unity between the States 
than was created by the Federal Government.^ On the out- 
break of the war several special conferences of the state gov- 
ernors were called. Governors of the New England States 
met at Boston, and those of the Middle Atlantic States met at 
Philadelphia, to devise plans for putting their States upon a 
war footing. Governors of the coal-producing States met at 
Chicago to consider ways of meeting the shortage of the coal 
supply. At the same time a special conference of the States 
was called to which every State in the Union sent representa- 
tives, among whom were a number of state governors. The 

1 This failure has been set down " partly to the short terms of 
most governors and the consequent changing of membership of the 
Conference and lack of sustained interest in the proceedings, partly 
to the social and unbusiness-like character of the poorly attended 
meetings, but more particularly to the lack of the proper sort of a 
permanent and efficient organization." J. M. Mathews, " Principles 
of American State Administration," p. 132. 



THE SEPARATE STATE GOVERNMENTS 225 

part played by this conference in the organization of state coun- 
cils of defense has already been referred to. Because of the 
plans drawn up at these special conferences, and particularly 
because of the bond of unity created by the formation of the 
state councils of defense, it was thought unnecessary to hold 
the annual conference in 1917; but in December, 1918, the con- 
ference again assembled and devoted its sessions to problems of 
reconstruction, while a special conference was called in March, 
1919, at the invitation of the Secretary of Labor, at which the 
special problem of restoring the labor conditions of the coun- 
try to a normal basis was considered. 

Duplication of effort by Federal and state governments. 
It will be observed that while some of the laws passed by 
the separate state legislatures helpfully supplemented the 
federal laws upon the same subject, many of them were mere 
duplications of the federal laws and accomplished no other 
purpose than to place the administrative machinery of the State 
in motion for the enforcement of the federal law in cases where 
the federal agents might have been unable to cover the ground. 
The question may perhaps be raised whether greater efficiency 
would not have been secured, and the large expenditures of the 
States and the consequent burden of taxation would not have 
been spared, had the Federal Government been able to assume 
complete control of the situation and had the state governments 
forborne passing war legislation of any kind. As a theoretical 
proposition the question may be answered in the afifirmative ; 
but considering that there were practical as well as constitu- 
tional obstacles to any such centralization of authority, some 
compensations w^ere to be found in the existing conditions. 
In the first place there is no doubt that the state governments 
were in a better position to meet the conditions of their particu- 
lar section of the country than the Federal Government would 
have been able to meet them by the enactment of general laws 
binding all parts of the country alike. Again, it is possible that 
the enactment of state laws, even though closely duplicating 
the federal laws, reconciled the population of the States to 



226 POLITICAL SYSTEMS IN TRANSITION 

the conditions imposed far more readily than would have been 
the case had the federal law alone been in force. The strong 
tradition still persisting in the United States in favor of the 
rights of local state government was more easily overcome by 
the enactment of local legislation paralleling the federal law, 
even where the latter would have been sufficient of itself to 
accomplish its purpose. 

It is equally beside the point to inquire whether a more effi- 
cient administration of the law might have been secured had 
it been entrusted to officials appointed by and legally respon- 
sible to the Federal Government. For practical purposes there 
was no other recourse for the Federal Government than to fall 
back upon the state administrative agencies already in exist- 
ence and to create in cooperation with the state governors such 
new agencies as were needed. But even had it been possible 
for the Federal Government to build up an administrative ma- 
chinery of its own for the enforcement of its new laws, the 
presence of so many federal agents in the several States might 
have tended to encourage resistance rather than obedience to 
the law. The administration of the Selective Service Act 
through the agency of local boards appointed by the state 
governors is a striking recognition of this fact on the part of 
the Federal Government.^ One may admit, therefore, the loss 
of efficiency due to duplication of effort in respect both to 
legislation and to administration and yet, considering the cir- 
cumstances, hold that such duplication furnished in many cases 
the readiest means of putting the governmental machinery of 
the States in motion for the enforcement, if not in all cases 
of the actual provisions of the federal law, at least of its 
general objects. A Federal Government which seeks to rec- 
oncile the opposing ideals of national unity and of local 
autonomy must pay the price in the size of its administrative 
officialdom and in the enhanced cost of the functions it per- 
forms. 
1 See above, pp. 211-213. 



PART IV 

PROBLEMS OF RECONSTRUCTIO-N IN THE UNITED 
STATES RAISED BY THE WAR 



CHAPTER X 

NEW IDEALS OF DEMOCRACY 

General effect of the war upon political institutions. 

With the signing of the armistice and the gradual slowing down 
of the war machinery of the separate States, the reaction an- 
ticipated by all observers began to set in. A year has since 
elapsed and we are as yet only beginning to realize how far- 
reaching have been the effects of the war not merely upon the 
structure and functions of our political institutions, but upoti 
the fundamental principles underlying them. Victors and 
vanquished alike have felt the force of new disruptive move- 
ments. While the polyglot Austro-Hungarian empire has dis- 
integrated into its component parts, and Russia has gone 
through an even more severe ordeal of civil war, the other na- 
tions have not escaped the effects of the great political earth- 
quake. After a brief period of revolution following her trans- 
formation from an empire into a republic, Germany returned 
to a degree of political stability that is threatened for the time 
being only by the economic burdens imposed upon her by the 
treaty of peace. Humiliation at the hands of a common enemy 
has had its historic effect in mitigating the sharpness of class 
hostility 'and in drawing the parts of the empire within the 
circle of a common sympathy. Domestic problems of read- 
justment are, therefore, for the moment subordinated in Ger- 
many to the great international problem of self-preservation.^ 
On the other hand, Great Britain, France, Italy, and the United 
States are still feeling the strain of the war, and are being 

1 The abortive revolution of the Pan-Germanists against the Social- 
Democratic Government, which has just taken place, is the first mani- 
festation of domestic division, although even here it is possible that 
the terms of the peace treaty are an underlying cause. 

229 



230 POLITICAL SYSTEMS IN TRANSITION 

urged on under varying degrees of pressure to alter their 
economic system and with it, to a greater or less degree, the 
machinery of their political organization. In Great Britain and 
the United States domestic problems loom larger upon the 
horizon owing to the greater security of their international posi- 
tion; but the same issues of internal reconstruction will press in 
varying degrees upon France and Italy as soon as the more 
important demands of their foreign policy have been settled. 
What will be the ultimate indirect, but none the less real, ef- 
fect of the war upon our existing political institutions must be 
for the historian of the future to determine. For the present 
we can only survey the changes that have taken place which 
promise to have constructive effects, and make a tentative 
effort to mark out the lines of probable development in the 
immediate future. 

The principle of self-determination. During the first two 
years of the war the moral forces of public opinion in neutral 
countries were directed chiefly to the question of placing re- 
sponsibility for the catastrophe. Then in December, 1916, 
public opinion veered to the problem of formulating the terms 
of a just settlement of the conflict. A month later, on Janu- 
ary 22, 1917, President Wilson presented to the Senate a state- 
ment of the constructive conditions upon which he considered 
it possible that the United States might cooperate with the na- 
tions of the world in establishing an international league to 
guarantee peace. Among these conditions was the principle 
that " no peace can last, or ought to last, which does not recog- 
nize and accept the principle that governments derive all their 
just powers from the consent of the governed, and that no 
right anywhere exists to hand peoples about from sovereignty 
to sovereignty as if they were property." Here we have the 
right of the self-determination of national groups set forth as 
an abstract principle in terms borrowed directly from the 
American Declaration of Independence. A year later, on Jan- 
uary 8, 1918, when the United States was itself a belligerent, 
the same principle was reiterated in more definite form as 



NEW IDEALS OF DEMOCRACY 231 

applying specifically to the subject nationalities of the enemy 
powers. Among these subject nationalities the idea worked as 
a ferment of revolt, and long before the armistice was signed 
revolutionary committees had been formed by them in the 
countries of the Allies to give effect to the program of libera- 
tion. In their turn the countries of the Allied powers reactc 1 
to the appeal for the release of national groups from the yoke 
of the oppressor. In the United States in particular the re- 
sponse was earnest and insistent, and the principle which had 
served to justify its own revolution became the justification and 
the inspiration of its forces in their first war upon the soil of 
Europe.^ 

Its connection with the ideal of democracy. It was but 
natural that the right of self-determination of nationalities 
should have its effect upon the ideals of democracy within the 
boundaries of the newly emancipated States. For the same 
theory of liberty which underlies the claim of national groups as 

1 It is difficult to determine how far the right of the self-determina- 
tion of national groups can be said to have become an accepted prin- 
ciple of international relations. At the peace conference at Paris the 
principle was applied only to the subject nationalities of the enemy 
powers. It is clear that the application of the principle is still con- 
ditioned by the political development of the subject group and by the 
promise which it gives of being able to maintain a stable existence as 
an independent state. The United States, for example, has prom- 
ised self-government to the Philippine Islands when they have given 
proof of their ability to govern themselves ; while Great Britain con- 
siders Egypt and India to be ready only for a similar probationary 
degree of self-government. Moreover, the principle is conditioned by 
the political relations between the dominant state and the subject com- 
munity, and here no general rule can be laid down. Great Britain 
denies independence to Ireland partly on the ground of alleged dan- 
ger to her own safety from the presence of an unfriendly state at 
her ocean gates. Porto Rico's independence would in the eyes of 
the United States be uncalled for by the insignificant size of her 
political group. Whether the decision of the dominant state be just 
or unjust in these cases, it is clear that the right of self-determina- 
tion has not yet been accepted by international law except in the 
most general terras. 



232 POLITICAL SYSTEMS IN TRANSITION 

a unit to choose their governments and determine their destiny 
underlies the claim of individual members of each national 
group to have a voice in determining the character of their 
particular governments and the economic and social policies 
which those governments are to pursue. When the Czecho- 
slovak National Council, acting in the character of a Provi- 
sional Government, drew up its Declaration of Independence 
in Paris on October 8, 1918, it first recited at length the his- 
tory of its grievances against the Hapsburg dynasty and re- 
pudiated the claim of that dynasty to rule against the will of the 
Czechoslovak people. It then set fortl>»the ideals of its own 
domestic government, in which the principle of the freedom of 
nationalities took shape as the freedom of the individual citi- 
zen against special privileges and class legislation. Freedom 
of conscience, of speech, and of the press, and the right of as- 
sembly and of petition were guaranteed. Universal suffrage 
was granted, the rights of minorities were safeguarded by pro- 
portional representation, and the lesser national groups within 
the republic were assured equal rights. Again, when the 
Mid-European Union of the newly liberated nations extend- 
ing from the Baltic to the Adriatic was created on October 26, 
1918, in Independence Hall, Philadelphia, the assertion of the 
" inalienable right of every people to organize their own gov- 
ernment " was followed by a statement of the wrongs which 
had been suffered at the hands of their former governments 
in respect to the fundamental rights of citizenship, and the 
signers of the Declaration pledged themselves that the prin- 
ciples therein set forth should be " incorporated in the organic 
laws " of whatever governments their respective peoples might 
thereafter establish. Thus freedom of citizenship within the 
State became associated with freedom of the State as a whole, 
and it was recognized that the right of a group to demand its 
emancipation from alien control necessarily carried with it the 
obligation to respect certain fundamental rights which the citi- 
zen might claim against the group itself. 

The appeal to democratic ideals during the war. At the 



NEW IDEALS OF DEMOCRACY 233 

same time that tlie new nations were affirming their beHef in 
the principles of democracy as a natural concomitant of their 
assertion of the principle of self-determination, the United 
States, which had long since given its adherence to those prin- 
ciples in the abstract, was confronted with new problems bear- 
ing upon their interpretation and application. On every side 
appeals were made by the Government to the citizen body and 
by the leading organs of public opinion to their circle of readers 
to rally to the support of the moral issues that were at stake 
in the war. In Great Britain and France, where the call of 
self-defense was clear and unmistakable, the appeal to ideals 
was naturally less persistent than in the United States, whose 
people found it difficult by reason of their isolated position to 
realize the menace of a foreign foe. Moreover the traditional 
foreign policy of the United States had been such as to make 
the proposal of a war in Europe one which required a far more 
convincing justification on moral grounds. The educational 
propaganda carried on by the Committee on Public Information 
was but a small part of the general program of appeal from 
platform, pulpit, and press, seeking to clarify the issues of the 
conflict and to show how intimately the ideal of democracy 
which had dominated the United States since the days of the 
Revolution was bound up with the defeat of the armies of the 
Central Powers. That " the world must be made safe for 
democracy " became the battle cry of America. The call from 
the President was to fight " for the ultimate peace of the world 
and for the liberation of its peoples, the German peoples in- 
cluded : for the right of nations great and small and the privilege 
of men everywhere to choose their way of life and of obedi- 
ence." 

Application of the ideal to domestic conditions. It was 
inevitable that this nation-wide appeal to patriotism and high 
ideals should awaken deeper moral forces than such as could 
be satisfied with a mere triumph of armies over the enemy. 
Once the seeds of a new faith have been sown broadcast and 
have taken deep root in the popular mind, the plant cannot 



234 POLITICAL SYSTEMS IN TRANSITION 

be arrested until it has attained its full development. The mo- 
tives which aroused the citizen body to resist oppression from 
without were equally valid against oppression from within the 
State. In consequence, there came throughout the country a 
time of searching of hearts and men began to ask themselves 
whether the democracy for which the world was to be made 
safe had, in truth, been realized in the domestic institutions and 
policies of the nations upon whose military banners it was so 
prominently inscribed. Could it indeed be said that the exist- 
ing laws of the State corresponded with that ideal of democ- 
racy which was the antithesis of all that absolutism stood for? 
The very vagueness of the ideal made the critical inquiry as to 
its actual realization the more far-reaching and the more diffi- 
cult to satisfy. Democracy had become, as it were, synonymous 
with freedom and justice, and the searchlight of an alert pub- 
lic conscience was turned into the darker corners of public life 
where old abuses had hitherto remained more or less hidden 
from sight. This introspective process became all the more 
insistent after the signing of the armistice. The early and 
unexpected victory of democracy over the enemy from with- 
out its gates broke upon the public mind before the energies 
concentrated for that object had been half expended. In a 
moment of illusion men saw the world of nations remade and a 
new order of freedom and justice take the place of the out- 
worn international institutions which had failed to prevent 
the great catastrophe. Was it too fantastic to hope that out- 
worn domestic institutions might in like manner give place to a 
new political system worthy of the lofty visions that had taken 
possession of the popular mind? The question was asked by 
one and all to whom existing conditions had not met the meas- 
ure of their aspirations. The result was that a deep and wide- 
spread spirit of unrest began to be manifested, even in those 
countries in which the elements to unrest had hitherto been 
regarded as constituting a negligible proportion of the com- 
munity at large. Not only were existing political institutions 
the object of criticism and distrust, but it came to be questioned 



NEW IDEALS OF DEMOCRACY 235 

by many whether the whole purpose and aim of the State it- 
self had not been perverted from its primary object of secur- 
ing liberty and justice to one and all and had been concentrated 
upon the protection of the special interests of a privileged 
few. 

The demand for industrial democracy. The causes of 
this spirit of unrest, which in the year that has elapsed since 
the signing of the armistice has increased rather than abated 
in extent, lie in the domestic conditions of the different coun- 
tries and to that extent they are a primary concern of the soci- 
ologist and the economist. But in so far as these conditions 
demand for their cure the creation of a new political organiza- 
tion or, at least extensive adjustments of the existing political 
machinery, the}' become a problem of equal importance to the 
statesman.^ In the United States the problem is partly based 
upon the revolt of the worker against the domination of capi- 
talistic control of industry, after the manner of the revolt of 
national groups against the domination of an alien govern- 
ment ; and again partly based upon the demand of large masses 
of the population for a fuller share in the wealth of the country 
than has been assigned them by the processes of industrial 
competition. On the one hand it is asked, why fight a war to 

^ Politics, economics and sociology have, indeed, ceased to be divided 
by any clear line of demarcation and have come to deal in large part 
with the same subject-material, but from their own distinct points of 
view. The sociologist concentrates upon the human instincts and 
motives which bring men together in groups, the economist concen- 
trates upon external conditions which govern the struggle of these 
groups to provide for their material welfare, while the political sci- 
entist or statesman concentrates upon the governmental organization 
demanded to maintain law and order in the development of these 
social and economical relationships. The more complex social and 
economic life becomes, the more complex is the political organization 
required to meet the demands of law and order, and in turn the ex- 
istence of the political organization reacts upon the social and eco- 
nomic relationships which called for its creation. Henceforth, more 
than ever, workers in the three fields of science must be continually 
in consultation with one another. 



236 POLITICAL SYSTEMS IN TRANSITION 

make the world safe for a political democracy which has such 
obvious limitations in the satisfaction of the desire for free- 
dom? Of what advantage is it to cast a ballot for the officers 
of the State when by far the larger part of the life of the 
average worker is spent under conditions of employment dic- 
tated by industrial officers whom he is powerless to control? 
Why speak of a legal freedom of contract when for all prac- 
tical purposes the pressure of economic necessity forces the 
worker to accept the best bargain he can make? The assump- 
tion underlying both the federal and the early state constitutions 
at the time of their adoption was that political liberty was the 
primary object of government; but this assumption has proved 
to be completely inadequate in the presence of modern industrial 
conditions which have fundamentally altered the relation of the 
individual citizen to the community. The demand is, therefore, 
being made that political democracy be supplemented by in- 
dustrial democracy, and that the principle of self-government 
with its connotations of self-imposed restraints and self-de- 
termined policies shall be applied to the industrial community 
in much the same way in which it is applied to the same group 
of persons in their capacity of citizens of the State. 

Forms of industrial democracy. Stated thus in the more 
abstract terms of theoretical democracy the phrase " industrial 
democracy " is sufficiently intelligible, but when applied as a 
practical rule to the concrete facts of industrial life its forms 
are as diversified as are the forms which the theory of po- 
litical democracy has taken when converted into a working 
agency of government. As the phrase is now popularly used, 
it describes a reorganization of industry in which the workers 
shall be given a share in the management of the particular es- 
tablishment in which they work, and shall become co-partners 
instead of servants in industrial enterprise, just as the citi- 
zen body at large without respect to property or social posi- 
tion have become co-partners in the creation and direction 
of the agencies of government. The practical applications of 
industrial democracy vary all the way from a limited demand 



NEW IDEALS OF DEMOCRACY 237 

of the workers to organize and elect representatives, through 
whom they may voice their interests and grievances, to the 
extreme form of complete control of the organization and 
policies of the establishment. In its more moderate forms it 
is already in operation in numerous industries in Great Britain 
in the form of the " Works' Committees " recommended in the 
Whitley Report.^ These committees represent both the em- 
ployers and the workers and have a wide range of functions 
including questions of discipline in the workshop, the settle- 
ment of the general principles governing the conditions of em- 
ployment and the payment of wages, the adjustment of dis- 
putes between the employers and the workers, provision for 
industrial education, and the readjustment of the seasonal fluc- 
tuations of industry so as to secure greater stability of employ- 
ment. Similar committees, though possessing less compre- 
hensive functions, are now being introduced into isolated in- 
dustries in the United States, and indications point to the 
rapid growth of the movement here as well as in Great Brit- 
ain. A conservative statement of industrial democracy, as 
understood by the American Federation of Labor, may be found 
in the " Reconstruction Program " prepared by the Committee 
on Reconstruction created by the annual convention of 1918, 
and endorsed by the Executive Council. Under the subheading 
of " Democracy in Industry " the program compares the law of 
the State with the rules of industry and points out that whereas 
the methods of democracy prevail in the enactment of legisla- 
tion, the rules of industry are created, except where effective 
trade unionism exists, by the arbitrary whim of the employers. 
" Both forms of law," it is said, " vitally affect the workers' 
opportunities in life and determine their standard of living. 
The rules, regulations and conditions within industry in many 
instances afifect them more than legislative enactments. It is, 
therefore, essential that the workers should have a voice in de- 
termining the laws within industry and commerce which affect 
them, equivalent to the voice which they have as citizens in de- 

1 See above, p. 98. 



238 POLITICAL SYSTEMS IN TRANSITION 

termining the legislative enactments which shall govern them." 
The form of industrial democracy proposed by the Federa- 
tion, however, consists merely in the recognition by the em- 
ployer of the " right to organize into trade unions " and no 
machinery, such as joint industrial councils, is offered to sup- 
plement the present negotiations between the several labor 
unions and the employer. 

Proposals of the Industrial Conference. Perhaps the best 
expression of progressive public opinion on the subject of in- 
dustrial democracy is to be found in the report of the Indus- 
trial Conference which met in Washington on December i, 
1919, at the call of the President. The calling of tlie Con- 
ference had been precipitated by the failure of an earlier Na- 
tional Industrial Conference, which had met in Washington on 
October 6, 1919, to find a solution for the prevailing industrial 
unrest. This first conference proved ineffectual owing to its 
inability to come to an agreement upon the principle of col- 
lective bargaining.^ The second Conference from the outset 
declared itself " in favor of the policy of collective bargain- 
ing " and drew up its proposals for the settlement of indus- 
trial disputes upon the frank acceptance of that principle. 
Omitting from consideration the elaborate machinery of na- 
tional and regional boards for the settlement of industrial dis- 
putes which the Conference recommended, attention may be 
called to its proposal of a system of ''employee representa- 
tion" within each industrial plant as the chief means of pre- 
venting industrial disputes from arising. Obstacles were con- 
fronted in the unwillingness on the part of employers to deal 
with officials of the American Federation of Labor or other 

lA majority of the Conference as a whole had favored the recog- 
nition of the principle of collective bargaining, but a form of pro- 
cedure had been adopted by the Conference which provided that no 
resolution could become effective unless agreed to by the votes of all 
of the three groups, representing employers, employees, and the 
public, into which the Conference was divided. The employers' group 
voted by a majority against recognition of the principle, and thus pre- 
vented its acceptance by the Conference. 



NEW IDEALS OF DEMOCRACY 239 

federated union leaders, as not being truly representative of 
their employees, and in the fear on the part of union leaders 
lest shop representation prove to be a subtle weapon directed 
against the unions. A reconciliation had to be effected, there- 
fore, between the organization of labor by trades and the or- 
ganization of labor within each industry as a unit. The Con- 
ference found that the relation between the two was " a com- 
plementary, and not a mutually exclusive one," and that in many 
plants the trade union and the shop committee were already 
functioning harmoniously, and that there were distinct func- 
tions to be performed by each organization. " Joint organi- 
zation through employee representation " was thus the pro- 
posal which the Conference offered as " a means of preventing 
misunderstanding and of securing cooperative effort." Em- 
ployers and employees were to meet together regularly to deal 
with their common interests. The Conference recognized the 
existence of conflicting interests between employers and em- 
ployees, but believed that there were " wide areas of activity in 
which their interests coincide," and that it was " the part of 
statesmanship to organize identity of interest where it exists 
in order to reduce the area of conflict." " The representa- 
tive principle is needed," it said, " to make effective the em- 
ployee's interest in production, as well as in wages and 
working conditions. It is likewise needed to make more 
effective the employer's interest in the human element of 
industry." ^ 

Radical phases of industrial democracy. The demand for 
the more extreme forms of industrial democracy approximates 
more or less closely to the program of the Syndicalists, and 
amounts to the complete management of industry by self-gov- 

1 The reader may make comparisons with the " works' committees " 
in Great Britain proposed by the Whitley report (see above, p. 98), 
and with the " workers' councils " created by the new German Consti- 
tution (see above p. 57). 

2 It is expressed graphically in the statement of the leader of the 
British workers in the shipyards along the Clyde, who in answer to 



240 POLITICAL SYSTEMS IN TRANSITION 

erning industrial groups.- This form of industrial reconstruc- 
tion, or rather revolution in some of its aspects, received a 
marked impulse as a reaction against the temporary control 
exercised by the British and American Governments over in- 
dustry during the war. The ideal of a Socialist State which 
should own and operate the principal instruments of produc- 
tion and distribution had always included as an essential con- 
dition that the State itself should be under the control of the 
workers. The experience of the war, however, made it clear 
to many Socialists that there was ever probability that further 
extensions of government ownership under existing conditions 
might result merely in a change of masters; and no advantage 
was found in exchanging the individual capitalist for a govern- 
ment controlled by capitalists. Even before the war a group 
of Guild Socialists in England had pointed out this danger, and 
had planned to offset it by a system of decentralized labor con- 
trol. The basic unit proposed by these writers is an industrial 
union as opposed to a craft union, for which unit they have 
revived the name of " guild." These local guilds are to be 
federated into a national guild, which is to have its Guild Con- 
gress meeting side by side and in cooperation with Parliament.^ 
In France the Syndicalist organization, an older body than the 
Guild Socialists, is based upon a union of two federations, that 

the question of an employer as to what was still wanted after suc- 
cessive increases in wages had been made, replied, " We want the 
works." 

1 It has been pointed out above (p. 96) that there is a sharp divi- 
sion in the labor movement in Great Britain between those who favor 
the nationalization of the great industries and those who are opposed 
to conferring such powers upon the state as at present organized. 
The Labor party has put forth a definite program for the " socializa- 
tion " of the great industrial agencies which control the necessities of 
life, and at the same time it is pressing an even more radical demand 
in the shape of the socialization of wealth already created and con- 
centrated in the hands of a small number of capitalists. The strength 
of the party makes its program significant, but there are influential 
voices in protest against what is considered a dangerous enlargement 
of the sphere of state control. 



NEW IDEALS OF DEMOCRACY 241 

of the local trade unions, and that of the local bourses which 
represent all the labor elements of the community. Like the 
Guild Socialists, the Syndicalists advocate self-governing 
industrial groups and are opposed to Socialism and 
collective ownership; but they differ from the Guild Social- 
ists in advocating " direct action," in the form of sabotage and 
the general strike, as a means of attaining their objects. In 
the United States the Industrial Workers of the World, better 
known as the I. W. W., are in respect to their methods of 
direct action more radical even than the French Syndicalists 
and less definite in their aims, but with them also it is the 
local self-governing industrial group that forms the basis of 
their industrial program.^ 

Necessity of experimental steps. That the demand for in- 
dustrial democracy is one which may easily run counter to 
sound principles of political and economic experience will doubt- 
less be admitted by all except its most extreme advocates. 
Conceding the necessity of inaugurating a program of co- 
operation between employers and employees in industrial 
management, the question becomes one of determining the steps 
by which it shall be introduced and the restrictions with which 

1 It is important, in view of the indiscriminate use in the public 
press of the terms Socialist, Syndicalist, Anarchist, Bolshevik, and 
" Red," to distinguish between their respective attitudes towards in- 
dustrial democracy. Judging them by their aims rather than their 
methods, they may be roughly classified as follows: the Socialist (of 
the orthodox Marxian type) makes collective or state ownership the 
basis of his reforms; the Syndicalist looks to self-governing indus- 
trial groups as the unit of organization with federation as the means 
of adjusting their conflicting interests; the Anarchist (of the philoso- 
phic type, like Kropotkin) relies upon similar self-governing indus- 
trial groups, with the government of the state eliminated ; the Bol- 
shevik combines Marxian Socialism, in the collective ownership of 
land and industry, with a measure of Syndicalism in the organization 
of the state by Soviets ; while the " Red " may fall into any one of the 
four groups, being distinguished by the methods of violence which 
he advocates to secure his aims rather than by the character of the 
aims themselves. 



242 POLITICAL SYSTEMS IN TRANSITION 

it must be surrounded during its initial stages. The inevitable 
tendency of the most moderate forms of industrial democracy 
must be to push on until in due time complete control over 
industry is obtained in respect to profits as well as to manage- 
ment. Whether the latter stage is to be the ultimate and ideal 
goal of industrial development is still a matter of theoretical 
discussion. But it would seem clear that, apart from any 
question of the confiscation of property, the universal and 
abrupt introduction of the syndicalist program of self-govern- 
ing industrial groups, before a sense of collective responsibility 
and enlightened self-interest on the part of the workers has 
been developed and before the complex relations between the 
individual industry and industries as a whole have been care- 
fully worked out, is one which may well give pause to all 
who have the experience of political development before their 
eyes. Political democracy has not attained its success except 
at the price of a degree of inefficiency and disorganization 
which would have sent the average industrial establishment 
into bankruptcy. In so far as the economic life of the com- 
munity is more complex than its political life and contains 
greater possibilities of disastrous mismanagement, there will 
be the greater danger of the presence of that partisanship 
which is the besetting sin of politics. Industrial groups may 
become as keen rivals as individual employers, with the prob- 
ability of less control over them by the State as a whole. 
A\'ithin the industries themselves unity of command in the 
organization and directive ability will continue to be essential 
conditions of efficient production, and the advantages claimed 
for democratic control must be balanced against the probability 
of serious losses from these two sources. If industrial democ- 
racy is entered upon in any thorough-going way, therefore, it 
must be prepared to pay some price in decreased production. 
At the same time it must be ready to impose upon itself re- 
straints similar to those imposed upon itself by political democ- 
racy; so that neither the organization of industry as a whole 
nor any part of it shall attempt to dictate policies except in 



NEW IDEALS OF DEMOCRACY 243 

accordance with the fundamental principles of an industrial 
constitution.^ 

Democracy and the distribution of wealth. Just as it is 
important that industrial democracy shall recognize the value 
of experience in political self-government, so it is important 
that the lessons of economic experience shall be borne in mind 
when the demand is pressed that the machinery of the State 
shall be used for the purpose of securing a more equitable 
division of the national wealth. Here again the circumstances 
under which the war was fought gave a new pertinence to 
an old grievance. The appeal made by the Government to 
the patriotism of the individual citizen, the sudden importance 
attached to mere manual labor as essential to the production 
of the necessary materials of war, and in particular the level- 
ling of class distinctions in the operation of the Selective Serv- 
ice Act, all seemed to point to a fundamental equality in 
human relationships which made the actual inequalities of social 
and economic status seem strangely inconsistent. If the State 
could call upon one and all of its citizens to make the supreme 
sacrifice or such lesser sacrifices as might be in their power, 
did not this imply that the State had on its part conferred 
such blessings upon its citizens as to justify the demands made 
upon them? Yet the wide disparity in the possession of the 
material goods of life seemed to contradict any such assumption. 
Many who had no particular sympathy with the doctrines of 
orthodox Socialism, either in respect to ownership by the State 
of the instruments of production and distribution, or in respect 
to a rigid wage system based upon abstract principles, never- 
theless came to believe that the actual distribution of property 

1 The economic aspects of the question are, of course, manifold, but 
they are outside the scope of the present discussion. Perhaps the 
most consistent attempt to work out a plan of industrial democracy 
along lines approved by political experience is to be found in the 
program of Guild Socialism, or, as the movement is novir better de- 
scribed. National Guilds. See A. R. Orage, ed., "National Guilds"; 
G. H. D. Cole, "The World of Labour." 



244 POLITICAL SYSTEMS IN TRANSITION 

did not represent an apportionment based upon natural eco- 
nomic laws, but was rather the result of artificial restraints 
upon the free play of human energies. The result was that 
a new force was given to the conception of democracy which 
looks upon the State not merely as an agent for the protection 
of existing rights, but as a direct source of positive benefits 
and as the dispenser of bounties of its own creation. At the 
same time what was left of the old traditional jealousy of the 
interference of the State in the economic life of the citizen 
practically disappeared before the recognized need of govern- 
mental control over the great industries of the country as a 
means of prosecuting the war more successfully. The prob- 
lem of the present after-war period is on the one hand to 
reconcile the need for greater protection of the citizen body 
against the power of the great corporations controlling the 
necessities of life, without at the same time destroying the 
individual initiative in business enterprise which is an essential 
part of the American tradition of democracy. On the other 
hand the burden of taxation must be made to fall upon wealth 
in due proportion to its larger enjoyment of benefits created by 
the State, yet without discouraging the practice of private 
thrift, or denying the larger measure of reward which energy 
and talent must inevitably command if their full powers are 
to be called forth. 

Constructive contribution of the war to democracy. Thus 
far we have been viewing what may be called the critical con- 
tribution of the World War to the problem of democratic 
government, in so far as the ideas of freedom which it set 
in motion tended to break through established political bound- 
aries and create a demand for a fuller measure of industrial 
liberty and a more equal distribution of the national wealth, 
On the other hand the war had the effect of strengthening 
in many ways the existing institutions of democracy and of 
enkindling a new faith in the old ideals. For the first time 
in its history of 128 years the United States found itself called 
upon to exert the full measure of its national strength against 
an external enemy. Demands had to be made by the Govern- 



NEW IDEALS OF DEMOCRx\CY 245 

ment upon the citizen body for a degree of cooperation and 
self-sacrifice which no previous war against a foreign State 
had ever called forth. The crisis was one in which the vital 
energies of democratic government were put to a test more 
severe than it had ever been contemplated by the founders of 
the republic they might be called upon to endure. In its en- 
deavor to meet that test we have seen what the United States 
was able to accomplish in respect to the mobilization of its 
national resources. Only incidental reference was made to the 
spirit of patriotism animating the response of the people to 
the demands made upon them. What moral forces this spirit 
of patriotism aroused and what may be its permanent contribu- 
tion to the problems of democratic government may here be 
briefly noticed. 

The strengthening of the bond of national unity. It was 
to be expected that war against a common enemy would result 
in binding together the citizen body by the creation of one 
supreme interest which overrode the lesser interests underly- 
ing the dissensions of normal political and social life. The 
mere motive of mutual self-defense against a foreign foe, 
however, has little in it of permanent political value. History 
shows that it has often been used by autocratic rulers to bind 
together rebellious elements of their population, which can be 
made for the time to forget their domestic grievances before 
the shadow of invading hostile armies. When, however, that 
shadow has been removed, whether by victory or by defeat, 
the internal forces of dissension reassert themselves in their 
full vigor.^ What gave a more than temporary unifying power 
in the United States to the nation-wide call of self-defense 
was the fact that ideals of political reconstruction were held 
out to the people by the Government from the very begin- 
ning of the struggle. The war was a war in defense of Amer- 

1 At the present moment, after four years of the closest national 
unity, Germany appears to be in a state of political confusion, in 
which there are no clear and definite principles of democracy pos- 
sessed by the people as a whole which can be rallied to the support of 
the new republican government. 



246 POLITICAL SYSTEMS IN TRANSITION 

ican rights, but it was also a war for the hberation of territor- 
ies occupied by the enemy, for the release of subject nationalities 
from alien rule, for the removal of the barriers of political 
distrust and economic rivalry which were a standing menace 
to the peace of the world. In the presence of these ideals 
the appeal to national unity, it is believed, had a distinct con- 
structive value, however difficult it may be at the present 
moment of reaction to point out its precise effects. It has 
left the citizen body of the nation richer in respect to the 
principles of cooperation and of mutual self-sacrifice for the 
common good, which are the foundation stones of democratic 
government. The ideal may be temporarily obscured in the 
confusion of partisan conflicts, but it still remains as a guid- 
ing principle to which all parties can appeal, and it must per- 
force exercise a strong unifying influence at a time when the 
power of organized groups is threatening to dominate the com- 
munity as a whole. 

Nev7 emphasis upon the duties of citizenship. Among 
other elements of constructive political idealism created by 
the war was the clearer conception of the duties of citizen- 
ship. It was owing, doubtless, to the peculiar traditions of 
American development, though the fault is shared in part by 
other democracies, that an undue importance has been attached 
in the past to the rights of citizenship as against the corre- 
sponding obligations entailed by those rights. The distrust 
of governments which marked the early history of the United 
States, and the strong sense of political and economic individ- 
ualism developed by the opening up of a new country are in 
part responsible for this attitude. The fundamental " rights " 
of the citizen were protected by specific constitutional clauses ; 
the fundamental duties were left to be reached by implication. 
As a matter of practical politics there may be no objection 
to this method of defining duties, but for educational purposes 
it is seriously deficient. At the very beginning of the war 
it was found necessary to determine some of the fundamental 
obligations of citizenship, including primarily the duty to serve 



NEW IDEALS OF DEMOCRACY 247 

in the armed forces of the nation, the duty to subordinate the 
interests of particular industries to the prosecution of the 
war, to engage in manual labor in essential industries, to sub- 
mit to the losses involved in price-fixing, to subscribe to govern- 
ment loans, and to make other pecuniary sacrifices. The key- 
note of the spirit of patriotic duty was struck by President 
Wilson in his proclamation fixing the day of registration for 
the Selective Service Act : " The whole nation must be a team 
in which each man shall play the part for which he is best 
fitted. To this end Congress has provided that the nation 
shall be organized for war by selection and that each man 
shall be classified for service in the place to which it shall 
best serve the general good to call him." That the sacrifices 
demanded by the Government were not distributed equally 
throughout the citizen body was doubtless largely due to the 
difficulty under any circumstances of framing laws to ap- 
portion fairly the burdens of civic duty; but to a considerable 
extent it should be put down to the failure to anticipate before- 
hand the comprehensive character of the demands which war 
would make upon the whole industrial and social life of the 
nation. But wherever the fault lay in that respect, the appeal 
during the war to the obligations of citizenship met with a 
response which surprised even the most hopeful, and one of 
the chief tasks of the present moment is to conserve the spirit 
of self-sacrifice thus created and direct it to the problems of 
reconstruction which are now before the country. 

The responsibilities of citizenship. While the war has 
done much to create a deeper sense of the obligation of the 
individual citizen towards the State as a whole, it has at the 
same time tended to strengthen the sense of responsibility 
which the citizen body of a democracy must feel for the exist- 
ence among its individual members of those minimum condi- 
tions of decent living without which true democratic govern- 
ment is impossible. It is a curious feature of American de- 
mocracy that a large part of the citizen body has been quite 
indifferent in the past to conditions of living among a section 



248 POLITICAL SYSTEMS IN TRANSITION 

of its population which were a standing contradiction to the 
ideals of democratic government. In a country so rich in 
natural resources and so far advanced in industrial develop- 
ment as the United States there have existed side by side con- 
trasts of wealth and poverty, of education and of ignorance, 
which cannot be reconciled with the equality of fundamental 
rights upon which the Declaration of Independence was 
based. For the poverty which exists in certain centers of the 
population is to be regarded not merely in its negative aspect, 
as consisting in the lack of certain material goods, but as a 
positive influence in promoting crime and immorality, in in- 
creasing 'disease, in retarding the healthy development of the 
young, and in creating the spirit of unrest which is popularly 
described by the name of Bolshevism. At the same time the 
economic disabilities of poverty have been attended by legal 
disabilities resulting from an administration of justice which 
has not taken into account the changing conditions of modern 
economic and social life.^ By contrast, however, to its former 
indifTerence to these conditions, there are signs of a marked 
change of attitude on the part of public opinion since the war. 
The people of the United States could not invest themselves 
with the role of crusaders against foreign aggression without 
having their eyes opened to similar obligations in respect to 
conditions of economic oppression at home. At the present 
moment there is being manifested both in the press and in 
the activities of civic associations a deeper understanding of 
the obligations of trusteeship involved in democratic govern- 
ment. While believing that the constitution of the State is 
fundamentally sound, leaders of public opinion are recognizing 
that there are in the body politic isolated sore spots which 

1 A recent authoritative investigation of the lower courts of the 
United States has revealed numerous cases of miscarriage of justice 
in consequence of long delays and heavy costs which the poorer 
classes were unable to meet. " Justice and the Poor," a report pre- 
pared for the Carnegie Foundation by R. H. Smith, with foreword 
by Elihu Root. 



NEW IDEALS OF DEMOCRACY 249 

must be removed before it can enjoy a healthy existence. The 
task of removing these sore spots is one to which every citizen 
must lend his aid. There has been far too widespread a tend- 
ency within recent years to look to the law to accomplish the 
necessary reforms in our industrial and social life. It is now 
beginning to be realized, in the light of the experience gained 
during the preparations for war, that the administrative 
machinery of the State, acting in pursuance of general laws, 
cannot reach many of the conditions which urgently need to 
be improved. A new understanding of an old idea is gaining 
ground, that in a democracy each citizen is for certain purposes 
an office holder, and that voluntary agencies must be created 
where the law appears to be unable to act. The wide range 
of activities performed by the great voluntary war associations 
and their elaborate programs for continued work in the same 
field give hope that the lessons of the war have created a new 
conception of civic responsibility. 

Voluntary associations as public agents. The work of the 
Red Cross and other voluntary associations, whether operating 
in immediate connection with the army or as auxiliary relief 
agencies in fields of social service created by the war, is suffi- 
ciently familiar to be passed over without comment. It is 
important, however, to emphasize the fact that by means of 
these agencies the Government was able to unload a large part 
of administrative work which there was no existing organiza- 
tion to handle. At the same time these voluntary agencies per- 
formed an important poHtical role, the usefulness of which, it 
is believed, will be realized only in future years. Theoretically 
it was possible for the Government to organize its own relief 
service of paid employees to do the work undertaken by the 
Red Cross and other privately organized bodies. But not only 
would the host of governmental officials thus required have 
made the machinery of government so complex as to have 
impaired its working efficiency, but their activities would have 
failed to meet with the same response from the citizen body. 
A people unaccustomed to governmental interference in their 



250 POLITICAL SYSTEMS IN TRANSITION 

daily lives would have resented the presence of a large body 
of paid officials, even though they performed precisely the same 
functions as were enthusiastically supported when performed 
by volunteer workers. In the case of the Food Administra- 
tion the plan was followed of inviting each individual citizen 
to become a member, and to pledge his or her cooperation with 
the plans put forth by the Government officials in control. This 
appeal of the Government to the voluntary aid both of groups 
and of individuals not only helped to obviate the dangers of bu- 
reaucratic control incident to the assumption of extensive 
powers by the Government, but helped to create a sense of the 
importance of the individual in democratic government. It has 
been questioned by statesmen whether democracy is possible in 
a country whose size is so great that contact between the indi- 
vidual and his representatives must necessarily be lost. The 
remedy is partly to be found in the continuance and develop- 
ment of voluntary associations operating on principles of free 
cooperative endeavor to meet recognized local needs. 

Rights of the community against organized minorities. 
The spirit of civic cooperation developed during the war by 
means of these voluntary associations, as well as the subordina- 
tion of local and individual interests to tlie needs of the country 
as a whole, is finding practical application at the present mo- 
ment in the controversies that have arisen between capital and 
organized labor in connection with certain of the great indus- 
trial establishments of the country. The issue is presented 
as a case of the rights of the community as a whole against 
organized minorities, whether these latter be the owners of 
industrial plants acting individually or in concert, or the indi- 
vidual or federated trades unions of the employees. On the 
one hand while the great transportation systems have been 
brought under the direct control of the Federal Government, 
the industrial corporations have remained practically uncon- 
trolled except where their combinations have brought them 
under the laws against monopolies and trusts. The owners of 
the great steel industries, of the coal, iron, and copper mines, 



NEW IDEALS OF DEMOCRACY 251 

of the textile and shoe factories, have been allowed to conduct 
their business with only such regard for the public as the 
profits of the industry and their individual sense of responsi- 
bility might dictate. On the other hand organized labor, act- 
ing through local and federated trade unions, has remained 
in like manner practically free from the control of the State. 
Industrial disputes resulting in strikes and lockouts have gone 
on in complete disregard of the community at large. During 
the period when the owners of industry had the upper hand 
resistance to proposals for compulsory arbitration came from 
that quarter ; but at the present day when the labor unions 
are beginning to realize their power, resistance to the control 
of the State is being manifested on their side as well. In both 
cases the public at large, as consumer of the products of in- 
dustry, has stood by in a patient and somewhat stolid mood. 
This mood is now changing to one of self-assertiveness, and 
under the inspiration of measures taken by the Government 
during the war to control both capital and labor the demand 
is being pressed more insistently that measures of compulsory 
arbitration be introduced not only in respect to what are known 
as public service corporations, but in respect to the great 
industries producing the more immediate necessities of life. 
Industrial disputes have thus come to be distinctly political 
problems, to which a solution must be found in the interest 
of the community at large. Capital and labor cannot be al- 
lowed to resort to the methods of private combat to the injury 
of a dependent public. Unless the welfare of the State as 
a whole is to be given precedence over that of any group 
within the State, democratic government will have reached 
a condition of bankruptcy.^ 

Democracy and freedom of speech. The urgent necessity 

1 Illustrative cases may be found in the strikes in the steel mills 
and in the coal mines in October and November, 1919. The general 
condemnation of the police strike in Boston in September, 1919, must 
be explained by the mistaken methods employed by the strikers in 
disregard of the rights of the community, even in a case where the 
substance of their claim appears to have been otherwise just. 



252 POLITICAL SYSTEMS IN TRANSITION 

for cooperation and complete unity of national purpose in time 
of war raised in an acute form the problem of freedom of 
speech in a democracy. We have seen the character of the 
laws passed by Congress and by the state legislatures as dis- 
tinctly war measures, as well as some of the bills subsequently 
introduced along the lines of the Federal Sedition Act.^ 
These latter measures are a direct outgrowth of the war, and 
represent an attempt to check the progress of radical doctrines 
subversive of the American form of constitutional government. 
They have had the effect of raising the issue whether, by sup- 
pressing freedom of speech, a democratic government is not 
repudiating one of those fundamental principles upon which 
democracy itself is essentially dependent. By their very nature 
such laws have to be drawn in more or less general terms, 
leaving it to the courts to determine their application to the 
facts of the particular case. That the way is thus opened to an 
abuse of power can scarcely be denied. Where does criticism 
of the present agents of government end and criticism of the 
institutions of government begin? How distinguish practi- 
cally between an attack upon an existing law as a piece of 
partisan and unjust legislation and an attack upon the same 
law in respect to its binding power? These are but instances 
of the legal difficulties which must be met by the courts; and 
while it may be conceded that in normal times the courts will 
be able to draw substantially just distinctions between what 
is seditious and what is not, the abstract principle of free- 
dom of speech remains in a somewhat precarious position. 
The old laws against anarchy made a clear distinction between 
the expression of opinions and the incitement to acts of vio- 
lence ; the new laws seem to be directed against the language 
itself irrespective of its probable effects. But the mere ad- 
vocacy of socialism, syndicalism, anarchism, or any other radi- 
cal scheme of reconstructing society, cannot be prohibited with- 
out encroaching upon freedom of speech in its most elemental 
form. The test must be not the ideal proposed by the revolu- 

1 Sec above, pp. 170, 218. 



NEW IDEALS OF DEMOCRACY 253 

tionist, but the means proposed for reaching that ideal. Vio- 
lence of every kind must be absolutely barred as a method 
of securing political ends. Under a constitution which pro- 
vides for majority rule no inferences from the abstract right 
of revolution ^ can be allowed to sanction a resort to force. 
The Syndicalist may be permitted to attempt to win over a 
majority to his program; what he cannot be permitted to do 
is to incite a minority to seek to accomplish by force what 
they are unable to accomplish through the ballot. So long as 
a law is on the statute books it must be obeyed; agitation 
for repeal is always in order; but until repeal is effected 
through the forms of law prescribed, resistance and the ad- 
vocacy of resistance cannot be tolerated if democracy is to 
survive. 

Democratic control of foreign affairs. One of the out- 
standing results of the war has been the demand for a greater 
degree of popular control over the administration of the for- 
eign affairs of the country. Whatever is to be said of the 
long delay in ratifying the treaty of peace with Germany, it 
is at least clear that the unending discussion of the subject 
both in Congress and in the public press has done much to 
educate the people upon questions hitherto largely remote from 
their thoughts. Partisan interests may be clouding the general 
issue, and the decision of public opinion at the moment may 
be biassed in consequence, but the ultimate result must be a 
marked increase of knowledge as a basis for future action. 
How soon " open diplomacy " can become a feasible and safe 
method of conducting the diplomatic relations of the United 
States with other countries will depend upon the degree to 
which public opinion is prepared to exercise an enlightened and 
self-restrained judgment upon the delicate problems which f re- 

1 An exception must be made, of course, in the case of the so-called 
"conscientious objector" who refuses obedience to a law because it 
violates moral principles which are to him a higher law than that of 
the state. Such cases involve, however, a negative attitude of resist- 
ance, not a positive attitude of aggression. 



254 POLITICAL SYSTEMS IN TRANSITION 

quently arise between nations. Popular excitement over ques- 
tions in dispute with foreign nations has more than once in 
the history of the United States proved dangerously chauvin- 
istic. It is fundamentally important, therefore, that if demo- 
cratic control over foreign policies is to prevail, in the sense 
that all questions at issue between the United States and other 
nations shall be placed in detail before the public during the 
negotiations, there must be a wider and more accurate know- 
ledge of the facts and principles involved than has hitherto 
prevailed. Ignorance not only lends itself to selfish and mis- 
taken conceptions of national advantage, but it has the far 
more serious weakness of offering no resistance to the appeal 
of the demagogue to the suspicions and hatreds which are 
still provoked by the rivalries of the great nations. The hope 
of international peace rests in the wider application of that 
rule of law which forms the guiding principle of our national 
life as a federation of semi-autonomous States. For the time 
being there are many problems to which it is difficult to apply 
abstract principles, and which can only be settled by such 
measures of expediency as the wisest statesmanship can devise. 
When the citizen body of a democracy has given proof that 
it can weigh facts dispassionately and forego immediate ad- 
vantage in favor of the general rule of law, it will be in order 
for it to take more directly in hand the decision of its foreign 
policies.^ 

1 For the difficulties attending a national referendum upon such 
questions, see below, p. 281. 



CHAPTER XI 

THE PROGRAM OF POLITICAL RECONSTRUCTION 

IN the preceding chapters in which the organization of the 
Federal Government and the extension of its activities to 
meet the demands of the war were described, no attempt 
was made to do more than set forth the actual changes intro- 
duced into the normal functions of the Government. In like 
manner the functions performed by the separate state govern- 
ments were presented merely in their specific character as 
war measures. But it is clear to all observers that the war did 
far more than merely bring about certain temporary and ex- 
pedient changes in the organization of the Government and 
the scope of its activities, some of which are to be undone 
as soon as possible after the conclusion of peace. Numer- 
ous questions were raised at one time or another during the 
course of the conflict, and the problem of the reconstruction 
of our political institutions concerns not merely the retention 
or the rejection of this or that change actually introduced, 
but it embraces the further question of the advisability of 
pushing forward in the direction of repairing the many other 
weak places in our political machinery which were revealed 
by the war. Owing to the urgent need of haste and to the 
stress of other more immediate demands, it was impossible 
during the war not merely to repair those defects but even 
so much as to discuss the proper methods of undertaking the 
task. But with the return of peace the problems presented 
by those defects are now before us and we may consider them 
in one sense as a direct heritage of the war. Many of them 
were, it is true, discussed as measures of reform in the years 
preceding the war ; they have now become urgent measures 
of reconstruction which the war showed us can no longer 
wisely be left to academic discussion. 

255 



256 POLITICAL SYSTEMS IN TRANSITION 

The problem of centralization versus decentralization. 

The first of the great issues of political reconstruction to 
which the war has given a new meaning and importance is 
the question of a more logical division of power between the 
Federal Government and the separate States.^ We have seen 
that the States were called upon during the war to yield to 
the encroachments upon their authority and jurisdiction in- 
volved in the assumption by the Federal Government of the 
new functions which the demands of the war forced it to 
undertake. If the past history of the country may be taken 
as an indication of future action it is not likely that the 
Federal Government will surrender the full measure of the 
temporary enlargement of its authority. Step by step during 
the 130 years of its existence the Federal Government has 
extended its powers beyond its original confines, still keep- 
ing within the letter of its constitutional restrictions, but reach- 
ing out to meet new conditions and new emergencies not con- 
templated at the time of its creation. The most urgent of 
these new conditions and emergencies were those created by 
the present war, and under its stress an extension of Federal 
power not hitherto contemplated by the most ardent federalist 
was acquiesced in by the States without complaint or protest. 
It must be observed, however, that not all of the war powers 
assumed by Congress and the President were an encroach- 
ment upon the sphere of action of the States. Many of the 
new functions represent activities of government which by 
their very nature, being national in scope, were beyond the 
control of the individual States, yet which had not been ex- 
pressly or impliedly delegated to the Federal Government. 
President Roosevelt once emphasized the fact that the constitu- 
tional division between the powers " delegated " to the National 
Government and those " reserved " to the States had left 
vacancies and blanks between the prescribed limits of national 
jurisdiction and the possible limits of individual state action; 

1 For the present constitutional basis of this question and its his- 
torical background, see above, pp. 18-20. 



PROGRAM OF POLITICAL RECONSTRUCTION 257 

and it was his belief that the National Government had power 
to fill these gaps, so that no person or corporation should 
remain outside the control of the law. The recent war made 
it possible for the Federal Government, in the exercise of 
strictly war powers, to enter a large part of this unoccupied 
legislative field. With the return of peace these war powers 
must now be formally relinquished ; but the tenacity with which 
the Federal Government has held on to them, after the cessa- 
tion of actual hostilities, in order to meet the emergencies of 
the period of reconstruction raises the very definite issue 
whether steps may not be taken to grant to the Federal Gov- 
ernment by formal constitutional amendment the powers which 
by general consent it urgently needs. 

Permanent place of the States in the Federal Government. 
The question of the extension of the powers of the Federal 
Government might, indeed, be anticipated by an inquiry as to 
whether it is desirable to retain at all the present system of 
forty-eight separate state governments with their elaborate 
organizations of legislative, executive, and judicial bodies 
paralleling the national organization. To a foreign observer, 
unacquainted with the traditions of American political growth, 
the presence of these distinct political units scattered over a 
country where, except in isolated corners, the economic and 
social life of the people is approximately uniform must seem 
a needless multiplication of governing officials and an ex- 
travagant expenditure of public funds. But apart from the 
strength of the American tradition of state rights in the 
older sections of the country, it would seem that the American 
people as a whole are convinced that there is a distinct func- 
tion for these separate state units to perform in the sphere 
of local self-government, and that this function is worth the 
price in money and in admitted inconvenience in certain busi- 
ness and social relations. This feeling has been strengthened 
rather than weakened as a result of the experiences of the 
war. The assumption of new powers by the Federal Govern- 
ment was paralleled by an administrative decentralization 



258 POLITICAL SYSTEMS IN TRANSITION 

which threw upon state agencies the task of adjusting to local 
conditions the uniform provisions of the federal law. As 
we have seen, the successful execution of the Selective Service 
Act was due in large part to the local draft boards which 
acted as intermediaries between the Provost Marshal General 
and the individual citizen. For the first time since the adop- 
tion of the Constitution the Federal Government departed from 
its procedure of carrying out its laws by its own appointed 
agents. As a result of this experience the Secretary of War 
was able to point to " a demonstration of the fact that there 
is in the state governments a relation so vital to our national 
strength, a relation so indispensable in times of emergency or 
disaster of any sort, a relation so essential in times of threat- 
ened difficulty, a relation so indispensable to the aggregate, that 
we know as the United States that from now on the dignity 
and importance of the state government can never be ques- 
tioned successfully as an essential part of our institutional 
system." ^ As a practical issue, therefore, the proposal to dis- 
card as outworn the machinery of state government may be 
dismissed without further comment. But this still leaves un- 
settled the question whether a number of the powers now ex- 
ercised by the States could not be transferred to exclusive 
national control. 

New powers needed by the Federal Government. As a 
preliminary step towards transferring certain of the powers 
of the States to the Federal Government, an amendment to the 
Constitution should be adopted conferring upon the Federal 
Government the power to meet those problems of national 
importance which transcend the legislative powers of the States 
and yet which are not within the present enumerated powers 
of Congress. It is difficult to draw up the precise text of such 
an amendment, but its general substance can at least be indi- 
cated. As a tentative proposal it is suggested that the amend- 
ment might be framed along lines granting to Congress the 

^ Address before the Governors' Conference at Annapolis, 1918, 
" Proceedings," p. 25. 



PROGRAM OF POLITICAL RECONSTRUCTION 259 

power to assume direct control over all matters in which the 
needs either of the nation as a whole or of any part of it 
cannot be attained by the individual action of the several States. 
These needs may in some cases arise from the demand for 
legislation protecting the people of one State against acts done 
or conditions existing in another State, and in other cases 
they may arise from the demand for positive legislation to 
promote the national welfare under conditions which cannot 
be met by isolated state laws. For some years past Congress 
has been attempting to assume the powers of a national legis- 
lature by a broad interpretation of its powers over commerce 
between the States. The Anti-trust Act of 1890 is a familiar 
example. By including within the term '* commerce " not only 
the carriers of commerce and the articles transported, but the 
business agreements by which goods were transported or with- 
held from transportation, it was possible for Congress to for- 
bid contracts or combinations in restraint of trade or com- 
merce between the States and bring under its control the great 
corporations whose activities were beyond the reach of the 
individual States. But in this attempt to protect the public 
against the power of combinations of capital to fix prices and 
defeat the normal operation of the law of supply and demand 
Congress v/as hampered by the fact that it could not act 
directly upon the object of offense, but could only seek to reach 
it through the indirect exercise of its control over the channels 
of interstate trade. Lack of power to regulate the manufacture 
of articles and the incorporation of business companies in that 
capacity prevented Congress from applying the most direct and 
effective remedy. Duplicate federal and state charters were 
a possible but not a practicable solution. In the case of the 
great insurance companies doing business in a number of 
States, Congress has been unable to take any action at all, 
owing to an unfortunate decision of the Supreme Court that 
the business of insurance was not commerce and therefore not 
subject to the Federal Government. 

Control over profiteering. At the present day the need of 



26o POLITICAL SYSTEMS IN TRANSITION 

more comprehensive powers on the part of Congress is sharply 
felt in three more or less related fields. In the first place there 
is the nation-wide call upon Congress to place restrictions 
upon profiteering in food, fuel, clothing and other necessities 
of life. So long as the state of war technically continues it 
is possible for Congress to use the powers of the Food and 
Fuel Control Act and its amendments ^ to prevent hoarding 
and manipulation of supplies; and it was equally within the 
power of Congress to fix the price of sugar during the recent 
shortage, as the price of wheat was fixed by the original Act. 
But with the formal close of the war and the necessary aban- 
donment by Congress of its powers there will remain only 
the power over interstate commerce as a possible means of 
meeting the situation. While its powers over commerce will 
enable Congress to control restraints upon the free flow of 
trade between the States, they will not be adequate to prevent 
the hoarding and sale at exorbitant prices of goods within the 
boundaries of a single State. State legislation will be needed 
to supplement federal legislation, and as in other such cases 
the offenders may succeed in slipping through the gaps. 

Control over nation-wide strikes. In the second place the 
legal difficulty experienced by the President on the occasion 
of the strike in the coal mines in November, 1919, shows the 
need on the part of the Federal Government of more direct 
power to meet similar emergencies in the future. Orders were 
issued on October 15 by the executive officers of the United 
Mine Workers that the strike should begin on November ist. 
Conferences between representatives of the owners and of the 
miners, called by Secretary of Labor Wilson, failed to reach 
an agreement, and on October 24th the President issued a state- 
ment in which the proposed strike was described as " unjusti- 
fiable " and " unlawful " because of its efifects upon the pro- 

1 The amendment approved October 22, 1919, extends the provi- 
sions of the original Act so as to cover foods, feeds, wearing apparel, 
fuel, fertilizers, tools, utensils, implements, machinery and equipment 
required in the production of foods, feeds, and fuel. 



PROGRAM OF POLITICAL RECONSTRUCTION 261 

duction and distribution of the necessaries of life. The 
Attorney General thereupon announced the intention of the 
Government to establish the illegality of the strike under the 
circumstances, without however impairing the general right 
to strike. Accordingly the Government obtained from the 
Federal District Court at Indianapolis an order restraining the 
union officials " from doing any further act whatsoever to 
bring about or continue in effect the above-described strike." 
The request for this order was based upon the provisions of 
the Food and Fuel Control Act. The order was confirmed on 
November 8th, and a temporary injunction was granted on the 
ground that the miners had been guilty of a conspiracy under 
the provisions of the Act. The officials of the United Mine 
Workers were at the same time directed to withdraw the strike 
order. Three days later the order was canceled. The strike 
leaders, however, protested against the application to them of 
the provisions of an Act which was based upon the technical 
continuance of a war which had ceased in actual fact. Here 
again, the formal close of the war will throw the Govern- 
ment back upon its inadequate powers over interstate 
commerce.^ 

Control over the raw materials of industry. A further in- 
stance of the need of new powers to meet national problems 
is to be found in the experience of the Government during 
the war in regard to the control of the raw materials of in- 
dustry. We have seen that the Priorities Board of the War 
Industries Board, by classifying the industries of the country 
according to their importance for the prosecution of the war 
and for the imperative needs of the public and by assigning 
to them the necessary supplies on a rationing basis, prevented 

1 It should be observed that the exemption of labor unions from 
the provisions of the Sherman Anti-trust Act, contained in the Clay- 
ton Act, can be undone by Congress, but this still leaves it doubtful 
whether the power over commerce can be used to defeat a strike con- 
ducted by orderly methods for the purpose of redressing grievances, 
whatever its effects upon the industrial life of the nation. 



262 POLITICAL SYSTEMS IN TRANSITION 

wliat might otherwise have been a demoralizing competition 
between essential and non-essential industries. A similar sys- 
tem of priorities was established by the Food and Fuel admin- 
istrations and by the Railroad administration in respect to 
transportation. The indispensable work performed by these 
priority boards is sufficient to demonstrate the advantages of 
having recourse to similar methods of control should an eco- 
nomic crisis again demand an interference with the normal 
law of supply and demand. At the time of the coal strike 
the President issued an order authorizing the Fuel Adminis- 
trator to issue such regulations in respect to the production, 
sale, distribution, apportionment, storage and use of coal as 
might in his judgment be necessary to prevent profiteering or 
the increase of prices during the emergency. TIere also, it is 
clear that Congress, deprived of its war powers, will be forced 
to rely upon its ordinary powers over interstate commerce ; 
and it is more than doubtful whether so comprehensive a con- 
trol based upon those powers would be constitutional. 

Surrender of state control over the instrumentalities of 
commerce. We may now turn to the more difficult problem 
of deciding whether certain powers which have in the past 
been recognized as belonging to the several States should be 
transferred to the Federal Government for the sake of greater 
efficiency and a more uniform administration. It would carry 
us too far afield from our main problem to discuss all the 
details of so complex a ciuestion, but a few leading principles 
may be offered by way of a tentative solution which is within 
practicable bounds. In the first place it would seem that the 
States should be called upon to surrender their local control 
of the great channels of transportation and communication 
which are by their very nature national institutions. Before 
the war a system of joint control was in operation, in ac- 
cordance with which the Federal Government regulated that 
part of the business of the coriipanies which concerned com- 
merce between the States, while the state governments regulated 
the local services performed by the companies. The result was 



PROGRAM OF POLITICAL RECONSTRUCTION 263 

a continuous conflict of jurisdiction between the Interstate 
Commerce Commission of the Federal Government and the 
public service commissions of the several States. For it is 
clear that no hard and fast line could be drawn between serv- 
ices which crossed state lines and services which were per- 
formed solely within them. During the war the state public 
service commissions surrendered their measure of control to 
the Federal Government, and the national and local functions 
of the railway, telegraph and telephone companies were per- 
formed as a single service. The restoration of the latter com- 
panies to their former owners revived the activities of the 
state commissions, and in that respect matters now stand where 
they were before the war. Greater difficulty is being ex- 
perienced, as will be seen later, in restoring the railways to 
their former owners, but of the many solutions for the prob- 
lem practically all contemplate either that the local control 
of the States be abandoned and that there be substituted in 
its place a regional grouping of the railroads based upon the 
organization of the railway systems and not upon artificial 
state lines, or else that the federal control be broadened to a 
greater or less degree.^ 

Cooperation as a substitute for constitutional unity. In 
the second place it is proposed that a more consistent scheme 
of cooperation should be worked out on the one hand between 
the States as a whole and the Federal Government, and on 
the other hand between the separate States themselves. At 
present the jurisdiction of the Federal and state Governments 
is not at all points mutually exclusive, and in a number of 
matters federal and state regulations exist side by side, the 
former taking precedence in cases of conflict but not over- 

^ It is of course compatible with such a surrender of state control 
that some plan of administrative decentralization should be worked 
out in accordance with which representation should be given to mem- 
bers of the public service commissions of the States upon the regional 
commissions administering the different railway systems, so that the 
local needs of the States could be adequately presented and a degree 
of local supervision maintained. 



264 POLITICAL SYSTEMS IN TRANSITION 

ruling the latter when restricted to strictly local affairs. But 
in these instances of overlapping jurisdiction there is a com- 
plete lack of cooperation between the two governing agencies. 
No systematic attempt has been made to bring the state laws 
with respect, for example, to pure food and drugs into harmony 
with the federal law and thereby secure the advantages of a 
unified administration. A more recent illustration of the pos- 
sibilities of cooperation is to be found in the inclusion by Con- 
gress of stolen automobiles among articles which, if trans- 
ported from one State to another, will bring the offender under 
the federal law. Here the Federal and state Governments 
might well work out a plan of concerted action which would 
be far more effective than isolated individual efforts to enforce 
the law. In like manner cooperation between the States them- 
selves by the adoption of mutually protective legislation would 
be greatly to their advantage in cases where the Federal Gov- 
ernment is constitutionally unable to give its assistance. 
Under present conditions, for example, when a fugitive 
criminal escapes from one State into another the authorities 
of the State in which the offense was committed have no power 
to pursue the offender across the state line and can only call 
upon the authorities of the other State to arrest the offender 
pending the presentation by the governor of a formal request 
for extradition. Moreover, there are numerous matters in 
which the mutual convenience of the States would be greatly 
furthered by the adoption of general legislation in place of 
the present individual state laws. Under the Constitution the 
wide field of the business relations of daily life is within the 
legislative jurisdiction of the several States. Contracts, title 
to real and personal property, wills, corporation charters, are 
but the beginning of the list of interests for the regulation of 
which there exist forty-eight bodies of state law either in codi- 
fied form or in the decisions of the courts. The inconvenience 
■resulting has so often been complained of that it is difficult 
for the layman to understand why the remedy has been so 
long delayed. The present uniform negotiable instruments law 



PROGRAM OF POLITICAL RECONSTRUCTION 265 

is an object lesson in the possibility of cooperation between 
the States in these matters, but thus far the efforts made in 
various quarters to secure further uniform laws have not 
met with any notable success. Private agencies of coopera- 
tion, such as the annual meetings of the state bar associations, 
are however, numerous, and it would seem to be only a ques- 
tion of time until public opinion shall be sufficiently educated 
to bring the necessary pressure to bear upon the state govern- 
ments to take action. 

The sphere of local autonomy. By contrast with these 
business relations there are other questions of social policy 
which bear upon the personal habits of the people, their stand- 
ards of moral conduct, and their ideals of community welfare. 
Here it is generally admitted that local state autonomy should 
continue to prevail, modified only by such measures of coopera- 
tion as are called for by the mutual convenience of the States. 
The regulation of the hours and conditions of labor, of mini- 
mum living wages, of the liability of employer to employee, 
the control of the use of intoxicating liquors,^ the censorship 
of moving-pictures, the direction of education and the support 
of educational institutions, would seem to fall primarily within 

1 It is of interest to note that the i8th Amendment prohibiting the 
manufacture and sale of intoxicating liquors represents, with the ex- 
ception of the abolition of slavery, the first transfer from state to 
federal control of a matter relating to the personal habits of the 
people. The Amendment contains, however, a provision giving to the 
several States a power concurrent with that of the Federal Govern- 
ment to enforce the Amendment by appropriate legislation. It is 
difficult to forecast what interpretation the courts will place upon this 
provision, which is an anomaly in American constitutional law. 

On June 7, 1920, a decision was handed down by the Supreme Court 
in which the court, while holding that the constitutional amendment had 
been legally adopted and was in every respect effective, interpreted the 
phrase "concurrent power" as not reserving to the States any express 
right, equal to that of the National Government, in the enforcement 
of the amendment. The result was to invalidate the various state 
laws interpreting the word "intoxicating'' more liberally than had been 
(lone in the one-half of one per cent, prescription of the Volstead Act. 



266 POLITICAL SYSTEMS IN TRANSITION 

the control of the units of state government, or within the 
control of local municipal officials by delegation from the state 
government. So also, measures of social relief, such as in- 
surance against sickness, unemployment, and old age, and loans 
in aid of farm improvements should be based upon local rather 
than national initiative. It is not denied, of course, that more 
immediate and efficient results might be obtained by a common 
national policy in these matters ; but preference is here given 
to individual state action on the principle that the local com- 
munities know best the conditions which the law is intended 
to overcome and their cooperative support is vital to the per- 
manent success of reforms of this character. The Federal 
Government may continue to act as an agency for the diffusion 
of information, following the present policy of several of the 
administrative departments in issuing bulletins of an educa- 
tional character dealing with subjects within their range, but 
it should not attempt to create its own agencies for the further- 
ance of its plans or assume to control rather than to guide. 
The problem of federation. Federation as opposed on the 
one hand to complete centralization of power and on the other 
hand to isolated independence is, indeed, the great political prob- 
lem of the age. It is urgently pressing its claims as the solu- 
tion of the continued territorial integrity of many of the great 
States of the world, and the wisdom of statesmen is being taxed 
to discover that just apportionment of governmental power 
which will preserve unity of empire without denying the claims 
of local autonomy.^ In some cases the movement was already 
on foot before the war and the war merely gave a new impetus 
to it ; in other cases the war accomplished directly what it 
might otherwise have taken years to accomplish. Great Britain 
is faced with the question in a two-fold form. There is the 
demand on the part of the great self-governing colonies for 
a right to sit in the councils of the empire, and there is the 

1 The same problem presents itself on a larger scale as a solution 
of the relations between the nations themselves as members of the 
larger international community. See below, p. 305. 



PROGRAM OF POLITICAL RECONSTRUCTION 267 

proposal, at present under consideration by a parliamentary 
committee, of establishing local legislatures for England, Scot- 
land, and Ireland, not as a matter of meeting the imperative de- 
mands of self-determination, except in the case of Ireland, but 
as a means of decentralizing authority and thus securing a 
government at once more democratic and more effective. 
France, as we have seen in an earlier chapter, is working upon 
a plan of administrative decentralization which may break up 
the close unification of authority in Paris. Germany has evaded 
for the time the issue of recreating the old political units which 
were absorbed into Prussia against their will, but the problem 
undoubtedly remains to be solved upon a federal basis before 
the new republic can become stable. Austria-Hungary, though 
dismembered for the present, must ultimately be driven to 
create some loose bond of union with her neighbors north, 
east, and south. Russia is at present in the throes of a civil 
war in which the autonomy of regions of the country is play- 
ing almost as important a part as the antagonism of classes. 
By contrast, the Jugoslav Federation represents an attempt to 
create a central government to meet the interests of States 
which are unwilling to sacrifice completely the rights of self- 
government demanded by their history and traditions. It is 
an interesting problem in the study of comparative government 
that the United States should at the present time be tending 
towards a greater centralization of power at Washington when 
other great nations are seeking a solution of their problems in 
a greater decentralization. 

Reorganization of the Federal Government. Next in 
order to the problem of drawing in a clearer and more logical 
way the dividing line between the powers of the Federal Gov- 
ernment and those of the several States is the problem of the 
reorganization of the Federal Government as a separate agency. 
It was pointed out in an earlier chapter that the system of 
checks and balances was deliberately introduced into the Con- 
stitution of the United States to accomplish purposes desired 
alike by conservatives and radicals. That the system is not a 



268 POLITICAL SYSTEMS IN TRANSITION 

logical one, based upon sound principles of administrative or- 
ganization, no one can now deny ; that it would work ineffi- 
ciently even in the case of a government far less complex than 
our present one might have been predicted ; that the conditions 
under which the Constitution was framed have completely 
changed, and that a system which was designed for one pur- 
pose is being made to serve another for which it is unfitted, is 
a fact of daily observance. It remained for the war, with its 
record of a year and a half of ill-concealed friction and ineffi- 
ciency to impress upon us the need of seriously setting about the 
task of reconstruction. The problem of the moment is not 
whether greater cooperation should be sought between the legis- 
lative and executive departments, but by what means that co- 
operation can be attained. Must a thoroughgoing alteration be 
planned and the Constitution amended so as to put it into effect, 
or is it possible to secure a satisfactory remedy which will at 
once cure the more serious defects of our system of govern- 
ment and yet leave intact the constitutional relations between 
the departments of the Government? 

Relations between Congress and the President. The con- 
troversy in the Senate attending the passage of the Overman 
Act ^ may be taken as a typical illustration of the relations be- 
tween Congress and the Executive. The President was, as 
we have seen, dependent in the exercise of his executive powers 
upon the action of Congress, and could but stand by impatiently 
until the necessary legislation was passed. If Congress dif- 
fered with him as to the advisability of a particular measure, he 
could present his views in person or through the mediation of 
a member of the committee in charge of the bill ; but he had 
no permanent or regular channel of communication with the 
two bodies. Had the United States been hard pressed at the 
time of its entrance into the war the delays experienced in 
getting Congress to pass the necessary legislation would have 
been acutely felt. It was, of course, to be expected that Con- 
gress should debate long before adopting so important a meas- 

1 See above, p. 193. 



PROGRAM OF POLITICAL RECONSTRUCTION 269 

ure as the Selective Service Act, which marked a striking de- 
parture from the traditions of the people and which three years 
before would have been considered as utterly out of the question 
in a war not fought for the immediate defense of the soil of the 
United States. But other measures in which policies of lesser 
moment were involved were unduly delayed, or even completely 
side-tracked, either because Congress was distrustful of the 
executive department and unwilling to surrender to it the 
sweeping powers it requested, or else because Congress, not 
being immediately responsible, failed to realize the urgent need 
of the measures called for by the Executive. Thus Congress 
allowed itself to play the ordinary game of partisan and pro- 
vincial politics at a time when every hour's delay increased the 
danger that the war might be won by Germany before the 
forces of the United States could be put into the field. No 
doubt a higher degree of statesmanship on the part of Congress 
and greater tact on the part of the President might have facili- 
tated the removal of these human elements of obstruction. But 
the fact that they existed at all makes pertinent the inquiry 
whether the grave danger which they presented in time of war 
cannot rouse us to remove the standing obstacle they form to 
efficient government in time of peace. 

Radical changes undesirable. The plans suggested by 
which a permanent bond of unity might be created between the 
Executive and Congress vary all the way from such mild pro- 
posals, as that the heads of the administrative departments 
should be included among the members of the committees in 
Congress which deal with their respective fields of administra- 
tion,^ to such radical proposals as that of transferring the initia- 
tive in legislation to the executive department and making the 
members of the President's cabinet the chairmen of the com- 
mittees in Congress. With respect to the latter proposal and 

1 A sketch of such a plan for closer relations between the Cabinet 
and Congress appears in " The Business of Congress," by Samuel W. 
McCall, at the time of writing member of Congress from Massachu- 
setts. 



270 POLITICAL SYSTEMS IN TRANSITION 

others of a similarly far-reaching character it may be said that 
whatever the merits of the cabinet form of government in the 
abstract, the engrafting of it upon the Constitution of the 
United States must as a practical question be left out of con- 
sideration for the present. American political institutions have 
developed along their present lines too long to be abruptly trans- 
formed without causing a degree of disorganization which 
would result in far greater evils than those attending the present 
system. The people of the country, with all their interest in 
political policies, have given too little consideration to the organ- 
ization of the Government to be ready to support any fundamen- 
tal change in it. However seriously cabinet government might 
be considered, therefore, were the Constitution to be recast as 
a whole, present expediency points in the direction of im- 
proving existing agencies and developing them through succes- 
sive stages towards the desired ideal. When we have ex- 
perimented with transitional measures we may be ready for 
the final logical step. 

Proposal that the Executive present measures to Con' 
grass. More moderate proposals, which nevertheless promise 
to effect a real measure of improvement, take the form of de- 
manding " that the administration shall propose and explain all 
its measures — the bills and the budget — openly in Congress 
and fix the time when they shall be considered and put to 
vote." ^ It is argued that, as it is a well known fact that the 
administration is really the guiding force behind the party in 
power, assuming it to be of the same political complexion, it 
would be desirable to have it do in a formal and public manner 
what it now does by means of personal conferences with the 
leaders in Congress. At present too much secrecy attends the 
passage of a bill, and there is the fullest opportunity in the 
sessions of the committees and in the caucuses of the party 
groups for evasions of responsibility in respect to the details 
of the bill as finally passed. Amendments in one form or 

1 H. J. Ford, " A Program of Responsible Democracy," in " American 
Political Science Review," August, 1918, p. 492. 



PROGRAM OF POLITICAL RECONSTRUCTION 271 

another may so far emasculate the bill that it ceases to be in 
reality the measure advocated by the Executive. Whether 
this proposal would ultimately result in the complete transfer 
of the initiative in legislation from Congress to the Executive 
is a question which need not be determined in advance. Its 
adoption need not interfere with the retention by Congress of 
its coordinate initiative in legislation, in accordance with which 
it would draft bills of its own in case the Executive failed to 
act, and would propose bills in competition with those of the 
Executive, leaving it to the test of discussion and debate to de- 
termine which of the two should prevail. By way of example 
Mr. Ford calls attention to the provisions of the Swiss Consti- 
tution which provides that the Federal Council, which cor- 
responds to the President and his Cabinet in the United States, 
" shall introduce bills or resolutions into the Federal As- 
sembly," and that its members " shall have the right to speak 
but not to vote, in both houses of the Federal Assembly, and 
also the right to make motions on the subject under considera- 
tion." By leaving the drafting of bills to the administration, 
even to the extent of allowing it to reshape the language of 
the bill so as to include amendments desired by the Assembly, 
the danger of a bill defeating its own purpose by having un- 
noticed restrictions attached to it is largely obviated. The 
publicity attending the whole process makes it impossible to 
introduce the " riders " which are so frequently tagged on to 
the legislation of our Congress. 

Presidential initiative in legislation. It would seem some- 
what idle, in view of the changed conditions and the present 
complexity of public business, to inquire whether the assump- 
tion of such a role by the Executive would be consistent with the 
original purpose of the Constitution. The terms of the Con- 
stitution at least do not preclude the appearance of the Execu- 
tive before Congress to present and defend its measures. It is 
specifically provided that the President " shall from time to time 
give to the Congress information of the State of the Union, 
and recommend to their consideration such measures as he shall 



272 POLITICAL SYSTEMS IN TRANSITION 

judge necessary and expedient." In the exercise of its right 
to " determine the rules of its proceedings " Congress could 
without objection fix the times when the administration bills 
might be presented and debated. But that Congress should 
abandon entirely the initiative in legislation would undoubtedly 
be inconsistent with the spirit, if not the letter, of the Con- 
stitution. What distinguishes Congress from the legislative 
bodies of governments in which the cabinet system prevails is 
precisely that Congress has never formally admitted the leader- 
ship of the Executive in legislation, and that, whatever the in- 
fluence of the Executive upon the party councils of Congress, 
Congress has regularly originated law upon questions of the 
widest variety and has not hesitated on one occasion after an- 
other to take an active share in the administration and guide 
the hand of the Executive by mapping out in detail the duties 
of the administrative departments. It is now proposed that a 
more logical division of power shall be made. " The cure for 
all our constitutional defects," says Mr. Ford, " the remedy 
for all the varied ills of our politics, is the conversion of Con- 
gress into an organ of control. . . . The cardinal principle is 
that the representative body shall have absolutely no share in 
the administration; then, and only then, will it form a system 
of national control over the administration in behalf of the peo- 
ple. It cannot share in the administration and hold control 
over it at the same time." ^ The correct principle, it is thus 
asserted, is not that one department of the Government should 
frame the laws and another department execute them, but that 
one department, the Executive, should both frame and execute 
the laws, and the other criticise the laws as framed and con- 
trol the execution of them by the administrative agencies. 

Congressional initiative in theory and in practice. The 
proposal that Congress shall become as it were a " board of 
directors " and shall limit its functions to those of criticism 
and control, whatever its abstract advantages as being in ac- 

1 " The War and the Constitution," " Atlantic Montkly," Oetob»r, 191 7. 



PROGRAM OF POLITICAL RECONSTRUCTION 273 

cordance with sound principles of business adminstration, has a 
rough road of Congressional opposition to travel, even if its 
adoption could be brought about without doing violence to the 
terms of the Constitution. The tradition of legislative initiative 
is still strong, even though the individual member enjoys but 
an insignificant part in the actual process of legislation. In 
theory the members of a legislative assembly come together to 
present the points of view of their several localities and by 
common counsel to adjust their divergent interests so as to reach 
a decision which will promote the welfare of the country as 
a whole and thus indirectly benefit their distinct groups of con- 
stituents. Lender such a theory the congressman is more than 
a mere critic of the policies advanced by the executive depart- 
ment. He is the spokesman of constituents who have dis- 
tinct views of the means which should be taken to attain the na- 
tional prosperity, and he enters into discussion and debate with 
his fellow congressmen on the floor of the assembly in order 
that by the contact of their individual convictions they may 
mutually correct and modify what was narrow and provincial 
in their original outlook. Obviously such a conception of legis- 
lative duty involves the right of the individual member to pro- 
pose measures on whatever subject he or his constituents be- 
lieve will promote the national welfare. To ask him to forego 
the initiative in legislation is to ask him to sit by idly until 
another branch of the Government not so closely in touch 
with the people is ready to bring forward a measure which may 
or may not embody the ideas he wishes to express. 

Such a conception of Congressional duty might with some 
justice be defended against encroachments of the Executive if 
in reality the average member of Congress had an opportunity 
to present and advocate the views of his constituents. But as 
is well known the business of Congress is performed through 
the agency of committees, and the question whether an in- 
dividual member shall be able to present bills which he desires 
to have adopted becomes largely a question of the commit- 
tees upon which he happens to be appointed. The House of 



274 POLITICAL SYSTEMS IN TRANSITION 

Representatives has in fact long since ceased to give any rec- 
ognition to the individual member, and has become a highly 
organized business body with committees covering every part 
of the field of legislation. These committees are, in reality, a 
series of small cabinets whose sessions are conducted in secret 
and whose chairmen constitute a group of the elder statesmen 
who have won their places by right of seniority. At the same 
time the organization of the House by committees has re- 
sulted in its losing its character as a deliberative body. The 
finality with which the reports of the committees are generally 
received leaves no room for discussion and debate on the floor 
of the House; and considering the immense volume of legisla- 
tion annually adopted the mere lack of time would be suffi- 
cient to silence the individual member. Instead of the meet- 
ing of many minds and the framing of legislation representative 
of the collective judgment of the nation, we have the decisions 
of small groups whose breadth of outlook is scarcely to be 
compared with that of the President and his departmental ad- 
visers. For all practical purposes, therefore, the individual 
member o/ the House of Representatives has not only lost the 
power of legislative initiative in national matters, but has been 
deprived of the opportunity of offering counsel and criticism. 
On the other hand, if the committee system represents the 
abandonment by individual members of an actual share in legis- 
lation, the practice of " log-rolling " applied to private appro- 
priation bills represents the abandonment of any collective judg- 
ment on the part of the House as a whole in dealing with such 
matters. Whether it be the fault of the representative who 
seeks to secure his hold upon his district by distributing jobs 
and contracts among influential adherents, or whether it be the 
fault of the district itself which judges of the value of its rep- 
resentative's services by the pickings he is able to secure from 
the " pork barrel," it is clear that the public at large would wel- 
come the transfer to the Executive department of the initiative 
in framing such bills and in determining the needs imderlying 
the applications for local improvements. It is a curious com- 



PROGRAM OF POLITICAL RECONSTRUCTION 275 

ment upon democratic government to witness the appeals to 
the President to save the country from the extravagances of its 
own locally elected representatives. 

Proposed plan of a national budget. The demand for an 
executive budget is based upon larger considerations than the 
mere correction of the scandals connected with private appro- 
priation bills. Its object is to put the financial affairs of the 
Government upon a sound basis by authorizing the President, 
who is responsible for the actual administration of public af- 
fairs, to draw up a consolidated budget which shall contain a 
definite statement as to the condition of the treasury at the 
time, the revenues and expenditures of the Government dur- 
ing the preceding and the current years, and the revenues neces- 
sary to meet the expenditures which must be made during the 
coming fiscal year. This authority in the head of the adminis- 
tration will unify the requests of the several departments for 
the grant of funds, so that thereafter no requests shall be made 
to Congress directly from the officers of the departments. The 
budget thus prepared, with its balances of revenues and ex- 
penditures and its classification of each according to units of 
administration, shall be submitted to Congress by the President 
at the beginning of each regular session, accompanied by a 
special message presenting a survey of the financial affairs of 
the Government. Congress in turn is to refer the budget to a 
special joint Committee on Finance of the two houses. This 
committee, in drawing up the appropriation bill, shall follow 
the same scheme of classified items that was followed in the 
budget, and shall, in making its recommendations to Congress, 
compare the amounts estimated for in the budget with the 
amounts actually recommended by the committee, with a state- 
ment of their reasons for departing from the estimates of the 
budget. These itemized appropriations shall not be increased 
by Congress except upon a two-thirds affirmative vote. 
Finally, provision is to be made for an auditor general, who 
shall be an officer of Congress and not of the Executive, and 
whose duty it shall be to examine the accounts of all expendi- 



276 POLITICAL SYSTEMS IN TRANSITION 

tures by the administrative departments and to report to Con- 
gress the results of his findings. In this way Congress will 
be able to exercise an effective control over the Executive and 
hold it to a rigid accountability.^ 

Transfer of legislative initiative to the President. The 
adoption of an executive budget might well be a first step 
towards the transfer from Congress to the Executive of a gradu- 
ally increasing degree of the initiative in legislation. As we 
have seen, the question becomes for the individual member of 
Congress a choice between committee rule and the formal 
acknowledgment of executive leadership. On the other hand 
the choice for the public at large is between the continuance of 
the extravagances in the expenditure of public funds, with 
consequent increase of taxes, and the renunciation by the con- 
stituents in the several districts of the selfish advantage of be- 
ing the occasional recipients of favors from the appropriation 
committees. Looking at the question in its larger aspects, 
Congress as a whole has much more to gain than to lose from 

1 Summarized from a pamphlet entitled, A National Budget Sys- 
tem, by W. F. Willoughby, published by the Institute for Government 
Research. For a more detailed study of the subject see the same au- 
thor's " Problem of a National Budget," 1918. At the opening of the 
special session of Congress in May, 1919, a "bill to provide for a na- 
tional budget system and an independent audit of government accounts 
and for other purposes" was introduced by Mr. Good, chairman of 
the House Committee on Appropriations. The bill carries into effect 
the chief provisions of the plan outlined above, with the exception of 
the part relating to the action of Congress upon the budget when it 
comes from the hands of the Executive. 

On May 29, 1920, Congress finally passed the McCormick-Good 
Budget bill, one provision of which was to the effect that the Con- 
troller General and the Assistant Controller General, who were to be 
appointed by the President with the advice and consent of the Senate, 
might be removed at any time by a concurrent resolution of Congress 
after notice and hearing. This provision was regarded by President 
Wilson as an unconstitutional encroachment upon the powers of the 
Executive, and as a result he vetoed the bill on June 4, while expressing 
himself "in sympathy with its objects." The bill was amended by the 
House, but failed to pass the Senate before its adjournment on June 5. 



PROGRAM OF POLITICAL RECONSTRUCTION 277 

the proposed transfer. The debates which gave dignity to the 
House of Representatives in the days of Webster, Calhoun, and 
Clay might in some measure be restored,^ and the critical and 
constructive knowledge now reserved for the committee rooms 
might be displayed upon the floor of the House and thus reach 
the country in a way in which the reprints of undelivered 
speeches have never done. The House should speak for the 
nation ; it should 1>e able to watch the Executive and call it to 
account for its acts ; it should be able to interrogate the heads 
of the administrative departments and obtain from them in 
the open sessions of Congress the information which they are 
now called upon from time to time to give to the committees ; 
it should be a forum for the frank discussion of present issues 
and future policies. Only thus can the " common counsel " and 
" meeting of minds " from all corners of the nation be applied 
to the solution of the pressing political problems before the 
country. To do this no more is required than a change in the 
rules of Congress, which it is entirely within the constitutional 
authority of that body to make.^ 

Possible deadlock betvi^een President and Congress of dif- 
ferent political parties. One serious weakness of the system 
of checks and balances under which the Government of the 
United States operates is the possibility of party friction which 
is offered by the different terms of office to which the President 
and members of Congress are elected. At the moment of pres- 

1 For a brief moment during the war the House of Representatives 
appeared to rise to the full stature of a deliberative assembly in the 
presence of the great war measures presented by the Executive. 

2 Mr. F. A. Cleveland outlines an elaborate plan by which Congress 
might become a " court of inquest " and develop a trial procedure in 
which "the case of the people against the Government" would be 
heard. " Democracy and Reconstruction," Chap. XX. The idea is 
suggestive, but as it would involve the necessity of having the Presi- 
dent reorganize his Cabinet in case a motion of lack of confidence 
were carried, and would thus logically lead to cabinet government of 
the type of the British Parliament, it may better perhaps await its 
turn until more tentative steps have been taken. 



278 POLITICAL SYSTEMS IN TRANSITION 

ent writing the contest between a President elected by 
one political party and a Senate controlled by another party is 
reaching its climax after more than a year of heated con- 
troversy between the two branches of the treaty-making au- 
thority. No one will contend that the party alignment in the 
Senate has represented in all cases the convictions of the mem- 
bers on the merits of the peace treaty. A problem of foreign 
politics, which has no proximate connection with the traditions 
of either party/ and which was not an issue at the time of the 
last election, has been thrust into the forefront of panisan de- 
bate, with the result that a practical deadlock in the operations 
of the Government has been reached. The Executive depart- 
ment, which controlled the negotiations of the treaty, is power- 
less to obtain its ratification by the necessary two-thirds in the 
Senate, while the majority in control of the Senate, although 
able to prevent the ratification of the treaty in the form desired 
by the President, is powerless to bring about the negotiation of a 
treaty after its own desires. In the meantime the inaction, 
which is often more demoralizing than mistaken action, is mak- 
ing the nation a spectacle of defeated democracy. Similar sit- 
uations have arisen before in connection with domestic problems, 
as in 1890 when a Democratic House of Representatives could 
make no headway with tariff reform against a Republican Sen- 
ate and President, but the worst that has resulted in such cases 
was the temporary suspension of legislation of a character that 
might accrue to the advantage of either party. When, however, 
questions of foreign policy are involved, and especially when 
issues of war and peace are at stake, it is imperative that there 
be no undue delay in reaching a decision. At the same time it 
is more than ever necessary that such questions be considered 
strictly on their merits, because of the greater responsibility at- 
tending the decision and the difficulty of undoing what has 
been done. The only solution, apart from a change in the 

^ If traditions based upon the policy of " imperialism " adopted after 
the Spanish-American war were applied to the situation, they would 
seem to call for a reversal of the present alignment. 



PROGRAM OF POLITICAL RECONSTRUCTION 279 

Constitution, which offers itself in such cases of divided party 
control is that the Executive should attempt to forestall oppo- 
sition in the Senate by appointing as commissioners for the 
negotiation of the treaty representatives of both political 
parties. 

Executive control over steps leading to war. Connected 
with the general problem of the reorganization of the rela- 
tions between Congress and the Executive is the question 
whether some means cannot be devised by which Congress 
may exercise a check upon the Executive in cases where the 
friendly relations of the United States with a foreign country 
are involved. The issue was raised acutely at the entrance of 
the United States into the war, but has been left unsettled in 
the presence of more urgent problems. It involves the at- 
tempt to draw a line between the general powers of the Execu- 
tive to direct negotiations with foreign countries and the specific 
power of Congress to declare war. Is the President to have a 
free hand in the conduct of foreign affairs even to the point 
where war is practically inevitable, leaving only to Congress 
the power actually to declare war, or may Congress intervene 
in the negotiations when they have reached a point where there 
is danger of a rupture of friendly relations? The former 
situation is undoubtedly the correct one as judged by the con- 
sistent practice of the Department of State, but it is obvious 
that it may easily nullify the power to declare war by putting 
Congress in the position of being obliged either to back out of 
a position assumed by the Executive, with consequent humilia- 
tion according to the accepted standards of international rela- 
tions, or else to support the Executive and to declare w^ar 
against what would have been its judgment had it been con- 
sulted in advance. The student of history is familiar with the 
manner in which President Polk, acting on his own discretion, 
gave orders to the army to undertake movements which had the 
inevitable effect of bringing on an attack by the Mexican forces, 
in reply to which Polk announced : " War exists, and, notwith- 
standing all our efforts to avert it, exists by the act of Mexico 



28o POLITICAL SYSTEMS IN TRANSITION 

herself." In 1895 a striking instance of the way in which ne- 
gotiations by the Executive, without knowledge of the peo- 
ple or control by Congress, could reach a critical point was given 
in the message of Secretary Olney to Great Britain in the Vene- 
zuela boundary controversy. Had an equally sharp reply been 
received from London it is more than possible that Congress 
might have found itself in a position where it would have been 
difficult to avoid maintaining by force the " national self-respect 
and honor " which President Cleveland believed to be involved 
in the case. Again in 1914, when our relations with Mexico 
were strained as a result of the affair at Tampico, President 
Wilson gave orders to the Navy to prevent certain cargoes of 
arms and ammunition from falling into IMexican hands, with 
the result that the port of Vera Cruz was occupied by Amer- 
ican marines and lives were lost on both sides. The occupation 
of Vera Cruz amounted in fact to war against Mexico. Had 
the latter been in a position to take up the challenge, Congress 
would have found it difficult to refuse to support the Execu- 
tive.^ 

Claims of Congress to joint control. It would seem, 
therefore, that Congress might justly claim the right to be 
consulted by the Executive before any step is taken in nego- 
tiations with a foreign State which might endanger the con- 
tinuance of friendly relations. But since by the custom of the 
Constitution the President has regularly exercised his power 
of conducting foreign affairs without acknowledging any au- 
thority on the part of Congress to call him to account, the 
difficult question is presented how Congress is to demand ef- 
fectively even so limited a participation in the action of the 
Executive, in case the latter should refuse to make the conces- 

1 Further instances might be cited, such as the action of President 
Roosevelt in 1903 in forbidding the landing of Colombian troops within 
fifty miles of Panama, which made it impossible for Colombia to 
subdue the revolution in that district and would undoubtedly have led 
to war without the previous implied consent of Congress, had Colom- 
bia been in a position to maintain her legal rights by force. 



PROGRAM OF POLITICAL RECONSTRUCTION 281 

sion. In all other respects the authority of the Executive in 
the conduct of foreign affairs has been exercised without any 
sense of responsibility to either of the other departments of 
the Government. No legal restraints are placed by the Con- 
stitution upon the President's powers. Vital and far-reach- 
ing as may be the results of the decisions that he makes, his 
responsibility is to the people directly, and there is no other 
recourse than to rely upon his sense of honor, good judg- 
ment and desire to promote the welfare of the country. His 
executive prerogative embraces " an unlimited discretion . . . 
in the recognition of new governments and states ; and un- 
defined authority in sending special agents abroad, of dubious 
diplomatic status, to negotiate treaties or for other purposes ; a 
similarly undefined power to enter into compacts with other 
governments without the participation of the Senate ; the 
practically complete and exclusive discretion in the negotiation 
of more formal treaties, and in their final ratification ; the 
practically complete and exclusive initiative in the official for- 
mulation of the nation's foreign policy. " ^ Doubtless if a 
general revision of the Constitution were in progress a re- 
organization of the relations between Congress and the Execu- 
tive would include some measure of control by Congress as 
a whole, or by the Senate in its treaty-making capacity, over 
the business of the Department of State. A single amend- 
ment directed to that object would present complications which 
would be difficult of adjustment with the other clauses of the 
Constitution. At present Congress can do no more than re- 
quest the Secretary of State to appear before its committees 
on foreign affairs and furnish such information after the 
event as it may seem expedient to that official to make public. 
Difficulties of popular control over foreign policies. It 
is a problem for those who advocate democratic control of 
foreign policies to devise some machinery by which the peo- 

1 E. S. Corwin, " The President's Control of Foreign Relations," 
pp. 205-206. 



282 POLITICAL SYSTEMS IN TRANSITION 

pie may be able to express their views upon the more press- 
ing questions which arise from time to time in the inter- 
course of nations. The same problem presents itself to those 
who are unwilling to leave to Congress the decision to make 
war, and who demand that Congress be guided by the results 
of a national referendum. In both cases the difficulty lies 
in framing the issue in such a way as to obtain a popular 
verdict which will not tie the hands of the Executive and of 
Congress when new circumstances arise. It is well within the 
range of practical reforms to advocate open diplomacy, and 
to insist that the public shall have full information of each 
important move in the exchange of diplomatic notes, leaving 
it to Congress and the Executive to be guided by the indica- 
tions of public opinion which come from day to day from 
the press and other agencies of national communication. But 
to attempt to formulate delicate questions so as to enable the 
public to return an authoritative answer is to assume that it 
is possible to express an opinion in positive terms upon a sub- 
ject which by its very nature requires an answer contain- 
ing qualifications and discriminations. The initiative and the 
referendum may in time come to be used as freely in national 
afifairs as they are at present used in many of the separate 
States, but as applied to the conduct of foreign affairs it will al- 
ways be necessary to consider that there is another party to 
the negotiations, to whom we cannot dictate but only make 
advances and offers, and whose next move in the exchange 
of diplomatic notes may make the latest expression of public 
opinion by referendum beside the point. 

The extension of the functions of government. Next in 
importance, politically, to the problems raised by the war in 
connection with the organization of the Federal Government 
are those raised in connection with the extension of the func- 
tions of government. During the decades preceding the war 
the Federal Government and the Governments of the separate 
States already were advancing more or less rapidly into the 
new fields of legislation in which economic and social problems 



PROGRAM OF POLITICAL RECONSTRUCTION 283 

of the widest variety were brought within the control of the 
law. The war accelerated the progress of this tendency, and 
has pushed us to the point where it is important to inquire 
whether we wish to continue along the same path or retrace 
our steps back to some limit beyond which no further advance 
should be made. The problem may be stated in terms of 
drawing a definite line between the proper sphere of govern- 
mental activity and the outlying fields of individual activity 
upon which it is inexpedient that the State should encroach. 
The older traditions of American Government have favored 
a policy of individualism in regard to the control of the Gov- 
ernment over industrial and social life. Partly due to economic 
theories dominant at the close of the i8th century and during 
the first half of the 19th century, and doubtless even more 
largely due to the physical conditions attending the develop- 
ment of a new country, the belief was widely held that govern- 
ments should limit their functions to the maintenance of law 
and order in the community and to the protection of the rights 
of person and of property, leaving it to the citizens themselves 
to look after material and moral needs. Opportunities being 
open to all, it was sufficient for the Government to secure 
fair play between individuals, and to allow the law of compe- 
tition to secure on the one hand the largest production of the 
material goods of life and on the other hand a fair distribution 
of the profits of production among those who had contributed 
to it. Artificial laws framed to interfere with the progress of 
this natural law could not but be an obstacle to progress. At 
the same time any proposal on the part of the Government to act 
as a positive agent in promoting public welfare represented an 
attempt to do for men what they could do equally well or 
better for themselves, and therefore tended to weaken their 
spirit of self-reliance and individual initiative. 

Control over railroads and trusts. This earlier conception 
of the limitations upon state action had already been abandoned 
in many fields before the United States entered the war in 
1917. The building of the great railways inevitably tended 



284 POLITICAL SYSTEMS IN TRANSITION 

towards monopolistic control and required the intervention of 
the Federal Government and the creation of a special agency 
of regulation. The growth under the law of competition of 
huge combinations of capital threatened to destroy the very 
law under which they had grown up, and the Federal Govern- 
ment was called upon to put forth a prohibition against such 
combinations when a purpose was shown to place restraints 
upon the freedom of commerce. That the policy followed by 
the Government was not a logical or consistent one can scarcely 
be denied. As a means of protecting the public the Govern- 
ment sought to enforce competition among the railroads and to 
prevent pooling of rates and services, but at the same time it 
found it necessary to control rates and services directly in cases 
where the law of competition could not operate effectively. On 
the other hand, as regards monopolies and trusts the law of 
competition was enforced, but it remained uncertain whether 
combinations were to be prosecuted which did not actually 
have the effect of restraining trade. At first the interpretation 
of the law by the courts penalized combinations as such, on 
the ground of the potential if not actual restraint of trade 
which they involved. But subsequently this position was re- 
versed and mere combinations, apart from unfair practices in 
their formation, were exempted from the terms of the act.^ 
The result was that, with the exception of the railways, com- 
binations of capital remained unregulated except in respect 
to their methods of combination, while the public remained 
practically unprotected except where there were overt acts 
showing an intent to obtain a monopoly over any part of trade 
or commerce. 

Governmental control during the war. The needs created 
by the war, as we have seen, greatly widened the sphere of 
governmental control over industrial life. The raw materials 

^ The recent decision of the Supreme Court in the case of the 
United States Steel Corporation again applies the " rule of reason " 
formuiated in the Standard Oil and American Tobacco Company 
cases. 



PROGRAM OF POLITICAL RECONSTRUCTION 285 

of industry were brought under control in so far as was neces- 
sary to secure the manufacture of the necessary war materials; 
priorities were established and a system of rationing was 
adopted ; corporations were created as subordinate departments 
of the Government for the construction of merchant shipping; 
the railways were taken over by the Government and placed 
under a director who administered them as a whole ; the tele- 
graph and telephone lines were in like manner converted into 
government agencies under direct control. Even in matters 
not so directly connected with the prosecution of the war the 
Government enlarged its sphere of action and undertook to fix 
a guaranteed price of wheat both to stimulate production and 
to offset a rise in prices ; it regulated other foodstuffs by means 
of a wide variety of voluntary and semi-compulsory methods, 
and in the exercise of its power to raise and support armies 
the Federal Government entered still further into the reserved 
domain of State legislation and authorized prohibition of the 
use of foodstuffs in the manufacture of intoxicating liquors ; 
it regulated the distribution of coal among non-essential in- 
dustries even to the extent of ordering a complete cessation of 
work in factories on Mondays during a critical period. In 
these and other ways Congress and the Executive met the 
emergency of the war by the assumption of new powers or 
the enlargement of existing powers wherever such action ap- 
peared to conduce to the attainment of the primary object of 
winning the war. 

Effect of war measures upon peace policies. It was im- 
possible, however, that the enlargement of the sphere of gov- 
ernment control over industry during the war should not have 
the effect of opening up new fields for the control of industry 
in time of peace. The traditional distrust of governmental in- 
terference was greatly lessened by the experience of the war 
administration. Rather the public at large came to look to the 
Government as a source of protection against conditions which 
appeared to be beyond the control of the ordinary economic laws 
which had hitherto been their safeguard. When demand so 



286 POLITICAL SYSTEMS IN TRANSITION 

far exceeded supply it was clear that competition was no pro- 
tection against exorbitant prices until the point of maximum 
endurance had been reached. Luxuries might be given up, 
but the necessities of life could not be denied, and the re- 
duced quantities of these commodities left the consumer no 
option but to pay the price demanded. In consequence no op- 
position was manifested by the public at large when the Gov- 
ernment continued to exercise during the months following 
the armistice the powers of control which belonged to it only 
by virtue of the technical continuance of the war. The prob- 
lem of the present moment is to determine what permanent 
provision may be made for such measure of control by the 
Government over industry as may be from time to time neces- 
sary to compensate for the temporary suspension of the protec- 
tion normally afforded to the public by the law of supply and 
demand. 

Railway reorganization. But while there has been a de- 
mand for the interference of the Government in industry to 
the extent of protecting the public against abnormal conditions 
which have afforded an opportunity for profiteering, the at- 
titude of the public towards the direct administration by the 
Government of public service corporations, such as the great 
agencies of transportation and communication, has been 
cautious and hesitating, if not directly in opposition. Doubt- 
less the most pressing problem of reconstruction before the 
Federal Government during the year following the armistice 
was the determination whether and under what conditions the 
railroads should be returned to their owners. The benefits in 
serv'ice obtained from the centralized control put into effect by 
the Government were so obvious that there was a clear and 
insistent demand that the railroads should not be allowed to 
revert to their former condition of separate and competing 
systems. Even before tlie war it had been clearly recognized 
that the Sherman Anti-trust Act and its various amendments 
had imposed upon the railroads a competitive system which each 
succeeding year showed to be out of harmony with sound 



PROGRAM OF POLITICAL RECONSTRUCTION 287 

economic principles. The theoretical gain which was to accrue 
to the public from the enforced underbidding of the several 
systems had proved illusory, and had resulted either in cut- 
throat and mutually destructive competition or in combinations 
devised to present a show of competition where there was in 
reality a unity of management. The unified administration of 
the Director General during the war showed the possibilities of 
economy and efficiency which could be effected through the 
merger of lines and terminals, ot rolling stock and general 
equipment. At the same time shorter routes were mapped out 
and through shipments were facilitated. Most important of 
all it was shown that when the railroads were being operated 
as a unified system it was possible to adjust them to the needs 
of the country far better than when they were operated as 
isolated and competing lines. 

Government ovwiership as a solution. It was one thing, 
however, to recognize the advantages of centralized control 
and another thing to determine how a unified system might be 
established for normal times of peace. Direct government 
ownership appealed only to a relatively small minority. It was 
advocated by the Socialist party as part of its general economic 
program of public ownership of the instruments of production, 
and distribution. Other less radical groups, without relying 
upon abstract theories, held that sound business principles 
called for a unified system of control, and that only under 
government ownership could such a system be satisfactorily 
worked out. While admitting the possibility of the intrusion 
of politics into the administration of nationalized railways, 
they were convinced that checks could be devised to offset this 
danger. As against these arguments, elaborated in detail, the 
actual experience of the operation of the railways by the Gov- 
ernment during the war seemed to others conclusive. How 
far the judgment of this larger body of the public was reached 
after a fair estimate of the difficulties under which the Govern- 
ment Director labored, and of the fact that the interests of the 
individual traveller and shipper had to be subordinated to the 



288 POLITICAL SYSTEMS IN TRANSITION 

requirements of the war administratis)!!, is another question. 
The chief count in the indictment brought by the general public 
against the Government's administration appeared to be based 
upon the observation that no obvious improvement in the char- 
acter of the service rendered was seen as a result of the trans- 
fer of the employee from the employ of private capital to that 
of the State as a whole. If anything, the greater security of 
employment under government control appeared to have the 
effect of weakening discipline. On the whole the verdict of 
the public, in so far as it may be judged from the columns of 
the press and from the resolutions of conventions, seemed to 
take into account only its own losses from government control 
and failed to balance them against the advant-ages accruing 
to the country as a whole in the prosecution of the war. A 
fairer -attitude towards the war administration of the railroads 
would be to regard it as an inconclusive test of the results of 
government administration in normal times, and to draw from 
it no more than tentative inferences in respect to particular 
phases of the problem. 

Private ownership with government control. The chief 
preoccupation of Congress, therefore, during the post-armistice 
period w^as to find some method by which the improved serv- 
ice resulting from unity of operation could be maintained with- 
out resorting to direct government ownership and administra- 
tion. Numerous plans were proposed by which mergers of 
competing companies might be made ; regional systems were 
mapped out in accordance with which the consolidation of 
local roads might be either permitted or compelled. The 
number of these regions varied from six, as proposed by the 
Director General, to twenty to twenty-five, as proposed by the 
chairman of the Senate Committee on Interstate Commerce. 
The Esch-Cummins bill, as finally adopted, empowers the 
Interstate Commerce Commission to divide the country into 
a limited number of regions and to formulate a plan for the 
voluntary consolidation of the railroads within these divisions, 
taking into account the interests of the transportation system 



PROGRAM OF POLITICAL RECONSTRUCTION 289 

as a whole. At the same time the Commission is empowered 
in times of emergency to assume control over the distribution 
of rolling stock, over the joint use of terminal and other facil- 
ities, and over the short-routing of traffic. Other items in the 
more extended control by the Government over the railroads 
provided for in the bill deal with the supervision of new rail- 
road construction and extension ; the issuance of mandatory 
orders in respect to safe and adequate equipment ; the deter- 
mination of minimum as well as maximum rates, the super- 
vision of new security issues, and the administration of ex- 
cess earnings of prosperous roads so as to create a contingent 
fund out of which loans may be made to other railroads in 
need.^ Taken as a whole the new law, while formally aban- 
doning the system of direct government administration in 
force during the war, sets up an indirect system of control 
which must become more and more rigid in its restrictions 
upon the free operation of the individual roads by their owners. 
The solution reached by the bill is clearly no more than a tem- 
porary expedient marking the inability of Congress to see its 
way to take the more logical step which it must ultimately be 
forced to take.. Sooner or later, whether by the decisive ac- 
tion of the Government or by the gradual process of combina- 
tion provided for in the law, the last elements of competition 
must give way before the imperative demand for the greater 
efficiency of a unified system. This may still leave the rail- 
roads under the management of their private owners, unless 
in the meantime some scheme of government operation may 
be devised which will give assurance to the public both of the 

1 The financial provisions of the bill include a six-months guar- 
antee of pre-war profits, together with a mandatory order to the 
Commission to establish rates that will yield to the carriers in each 
rate-making group a net operating income equal to 5^4 per cent, of 
the aggregate property value of the roads in such group. The labor 
provisions include the creation of a Railway Board of Appeals which 
will have compulsory powers of investigation in disputes between the 
railroads and their employees which threaten interference with inter- 
state commerce. 



290 POLITICAL SYSTEMS IN TRANSITION 

efficiency which is beheved to attend private management and 
of the absence of political interference by Congress in the in- 
terest either of local constituencies or of organized labor. ^ 

The proposal of the railway brotherhoods. The V Plumb 
Plan," Pending the decision of Congress between the alter- 
natives of government ownership and operation of the rail- 
roads and the reinstating of private capital and management 
subject to government supervision, a proposal of an entirely 
different character was put forward by the spokesmen of the 
four brotherhoods into which the employees of the railroads 
are organized. Under the name of the " Plumb Plan " the 
new scheme advocated that the railroads, after being brought 
under government ownership, should be operated by a single 
private corporation, run by the employees, the stock of which 
was to be held in trust for the benefit of the employees, 
who would pay the Government a rental out of the receipts 
of operation. The control of the Government was to be ex- 
ercised through a board of directors of fifteen members, to be 
selected one-third by the non-appointed employees, one-third 
by the appointed officers and employees, and one-third by the 
President as representative of the general public. Two fea- 
tures of the proposed plan are of important political signifi- 
cance : in the first place it marks the application on a large 
scale of the ideas of " industrial democracy," which in a more 
radical form have been associated with the principles of the 
Syndicalists and the Industrial Workers of the World.^ It 
recognizes the " partnership " of labor in the operation of the 

^ It would be outside the scope of the present volume to attempt 
more than the briefest outline of a problem of the greatest complex- 
ity, and it is referred to here only as illustrating the wider extension 
of the functions of government brought about by the war. Since the 
above was written, the inability of the railroads to meet the congestion 
of freight at the great terminals has necessitated the resumption of 
the unified operation conducted by the Federal Government during the 
war. 

2 Any connection with these radical groups is, it should be noted, 
repudiated by " Organized Labor." See above, p. 237. 



PROGRAM OF POLITICAL RECONSTRUCTION 291 

railroads, and the right of labor to take an active share in 
a " democratically " managed industry. In the second place 
it proposes that in addition to just wages a division of the 
surplus earnings of the railroads be made as an incen- 
tive to more skilful work. Profits in excess of the guaranteed 
return on bonds are to be divided between the operating cor- 
poration and the Government, under an arrangement by which 
when the Government's share exceeds 5 per cent of the gross 
revenues a reduction in rates is to be made to absorb the share 
of the Government. In neither house of Congress did the 
plan receive any appreciable degree of support, while the criti- 
cism of the press, including papers normally sympathetic to- 
wards labor, was generally unfavorable. The feature singled 
out for attack was that the public, as owners of the roads, 
were to hear all the losses, while the employees were to have 
a half share of the profits. Moreover, the plan appeared to 
repudiate even the Socialistic theory of government ownership, 
which assumes that, granting just wages, the service of the com- 
munity will be a sufficient incentive to the highest endeavor. 
It is probable, however, that in spite of these and other ob- 
jections raised against the plan, the strong support which it 
received from the railway brotherhoods will bring it again 
into prominence in a modified form should the present com- 
promise measure adopted by Congress fail to prevent a general 
strike. Isolated threats of a resort to " direct action " were 
made at the time the anti-strike provisions of the Cummins 
bill were under consideration; and apart from such drastic 
methods of securing Congressional action the entrance into 
politics of a Labor Party and the announcement of the Ameri- 
can Federation of Labor of its intention to elect candidates 
sympathetic to labor may well have the effect of securing a 
hearing from Congress. 

Private versus public operation of the telegraph and tele- 
phone lines. For the time being the advocates of the exten- 
sion of the control of the Government over the telegraph and 
telephone systems of the country have been sharply rebuffed 



292 POLITICAL SYSTEMS IN TRANSITION 

by the prompt return of the hnes to their owners after the 
conclusion of the peace negotiations in Paris. In this case, 
much more than in that of the railroads, the impression pro- 
duced of mismanagement by the government officials in charge, 
together with the higher charges for the service rendered, 
combined to disillusion many of those who were favorably dis- 
posed towards government ownership of the Hnes. It seems 
not unlikely, however, that the issue of government ownership 
will again be pressed in the effort to find a solution for labor 
disputes similar to those which, as we have seen, forced the 
Government to take over the lines during the war. More- 
over, it is argued that since the telegraph and telephone lines 
are closely associated, in point of service rendered, with the 
post-office department, it would require but a slight enlarge- 
ment of the facilities of the postal administration to operate 
the two systems. The higher rates charged during the war, 
it is argued, were no test of what the Government might 
accomplish in the way of reducing rates in normal times, since 
the conditions of operation during the war did not admit of 
merger of the equipment and personnel of the lines with that 
of the post-office department. Finally, it is claimed that the 
difficulties attending government ownership of the railroads, 
whose service is intimately tied up with the industrial life of 
the country, would not be present in the case of the telegraph 
and telephone lines, since the functions of the latter are rela- 
tively simple and involve no questions of economic policy. 
But these and similar arguments, however convincing in the 
abstract, have temporarily lost their force before the concrete 
experience of an unsatisfactory administration of the lines by 
the Government, with little or no allowance made for the ex- 
ceptional conditions of the war. As in the case of the rail- 
roads, the persistent belief in the inefficiency of the Govern- 
ment as an administrator must first be overcome by evidence 
that it is practically possible to isolate the service and conduct 
it upon the same business principles which prevail in success- 
ful private companies. Thus far no steps have been taken by 



PROGRAM OF POLITICAL RECONSTRUCTION 293 

Congress to meet the recommendation of the President that 
the competition between the two leading systems and other 
lesser ones give way to the creation of a single national sys- 
tem. 

Government ownership of the coal mines. The demand 
for the nationalization of the coal mines, which was offered by 
the miners as a solution of the conditions which led to the 
strike called on November i, 1919, was, like the demand for 
the nationalization of the railroads, an indirect outcome of the 
control exercised by the Government over the mines during the 
war. The mine workers, foreseeing a return to pre-war con- 
ditions, asserted a right to be " democratically " represented 
in the management of the industry and at the same time claimed 
a share in the surplus profits. They proposed that the Govern- 
ment should purchase the mines outright, and that the industry 
should henceforth be operated under the management of a 
board of directors similar to that proposed for the railroads 
by the Plumb Plan. The difference between the two proposals 
lay in the fact that the railroads were already under govern- 
ment administration and must in any case require a large de- 
gree of government control by reason of the many interrela- 
tions of transportation and business ; whereas the extent of 
the control exercised by the Government over the coal 
mines during the war consisted in fixing the price of production 
and in regulating the conditions of distribution, and there 
was normally no demand upon the Government to exercise 
control over the mines except to the extent necessary to pro- 
tect the public against extortionate charges by the mine owners 
and against a shortage of coal due to a general strike of the 
miners. The failure of the strike in the presence of the in- 
junction obtained by the Government under the Lever Act 
resulted in a temporary set-back to the demand for national- 
ization, even though the wage increases for which the strike 
was called were subsequently met in part. The menace of 
a general strike is, however, a weapon which can again be 
resorted to under more favorable conditions should similar 



294 POLITICAL SYSTEMS IN TRANSITION 

conditions among the workers lead them to press their claims 
in that way. At the same time the growing shortage in the 
supply of coal and the sharp increase in prices may have the 
effect of leading the public at large to bring pressure to bear 
upon Congress either to take over the mines as a whole or to 
institute a system of administrative control similar to that in 
force during the war. 

Government operation of the merchant marine. We have 
seen the wide range of activities performed during the war 
by the United States Shipping Board and the Emergency Fleet 
Corporation in connection with the direction and control of 
existing shipping facilities as well as the construction of new 
ships and the procuring of crews to man them. At the time 
it was the belief of many observers that such an extension 
of the functions of the Government must inevitably result in 
a permanent policy of government control, with the Govern- 
ment either in the role of competitor with private shipping 
companies or exercising indirect administrative powers similar 
to those possessed by the Interstate Commerce Commission in 
the case of the railroads. The event has belied these promises. 
At the moment of present writing, the Shipping Board, after 
having sold several of the ships owned by the Government 
and made unsuccessful efforts to sell others, has decided to 
await the action of Congress as to the proper steps to be taken. 
Together with the Government vessels already completed or still 
under construction in American yards are thirty former Ger- 
man passenger-liners, the majority of which were remodeled 
after the outbreak of war and used as transports until the 
fall of 1919. There is here the nucleus of what might be made 
an American merchant marine adequate to meet the growing 
needs of foreign commerce if it can be found possible to keep 
the ships under the American flag. Prior to the war the Gov- 
ernment had followed the policy of non-interference, leaving 
it to private capital to invest in merchant shipping according 
to the promise of profit, with the result that foreign com- 
panies secured most of the overseas trade. Immediately upon 



PROGRAM OF POLITICAL RECONSTRUCTION 295 

the outbreak of war the diversion of British merchant ships 
to uses of war and the capture or internment of the German 
ships resulted in a serious impairment of the facihties neces- 
sary to American trade ; and it was promptly realized that 
henceforth the United States must be put in a more independent 
position in respect to its carrying trade. Earlier proposals 
to the same effect, having chiefly in view the necessity of 
maintaining a fleet which could furnish to the navy auxiliary 
vessels in time of war, had always been blocked by the ques- 
tion whether subsidies should be granted by the Government 
to enable American shippers to meet the competition of foreign 
countries. Such measures as the La Follette Seaman's Act, 
by requiring a higher standard of working conditions upon 
American vessels, had been a handicap in favor of countries 
not maintaining the same level of hours of labor and wages.^ 
Government control over labor. Compulsory arbitration. 
It was noted as a point of striking significance in the study 

1 While the proposal of a merchant marine owned and operated by 
the Government appears to have been definitely repudiated by Con- 
gress, the Shipping Board, in attempting to dispose of the vessels 
left on its hands at the close of the war, laid down conditions of sale 
which were intended to keep the ships under the American flag. 
Moreover, it was stipulated that not only should the ships be continued 
in American service, but they should serve the routes which in the 
opinion of the Shipping Board would best further American com- 
merce, and also chat the ships should be available to the Government 
in time of national emergency. 

The Jones Merchant Marine Act, as finally adopted, creates a per- 
manent government agency of control to be known as " The United 
States Shipping Board," an enlargement of the former Shipping Board, 
whose powers in respect to foreign commerce are to be similar to those 
exercised by the Interstate Commerce Commission over commerce be- 
tween the States. The act provides that the merchant fleet now under 
control of the Emergency Fleet Corporation shall be sold only to Amer- 
ican individuals or corporations, and that pending the offer of fair 
prices the ships shall be either leased to American citizens or operated 
by the board itself. The act thus marks a radical departure in the 
policy of the Government towards an American-owned merchant ma- 



296 POLITICAL SYSTEMS IN TRANSITION 

of the functions of the Government during the war that while 
the Government extended its control over one part after an- 
other of the country's industrial life, it stopped short of as- 
suming authority over the labor forces engaged in produc- 
tion and distribution. Employers were taken in hand, their 
supplies of raw materials were curtailed, the prices of their 
products fixed, and their interests in general subordinated to 
those of the war. But labor maintained all the while its inde- 
pendence of action, and although acquiescing in certain limited 
measures of control in the form of mediation commissions for 
the settlement of disputes, it resisted any form of actual com- 
pulsion. Serious strikes were avoided by a policy of succes- 
sive concessions to the demands made for higher wages and 
improved conditions, while on its part labor refrained from 
pressing demands which the various mediation and concilia- 
tion boards might have found themselves unable to concede. 
The question now arises as to what measure of control the 
Government may exercise over labor in certain vital indus- 
tries, now that the temporary truce between labor and capital 
is at an end. Taking the labor conditions of the railways 
as an illustration, we find that the railway brotherhoods are 
willing to accede to the settlement of industrial disputes by a 
compulsor}' judicial board, provided labor is represented upon 
the board of directors, as in the case of the '' democratically " 
constituted operating company provided for in the " Plumb 
Plan." In the absence of democratic representation labor is 
unwilling to be bound by the decisions of an arbitral board. 
The original Cummins bill provided that ultimate control over 
wages and terms of employment be given to a government 
Transportation Board, and that at the same time it should 
be made illegal to strike. In answer to this proposal Mr. 
Gompers, testifying in the name of the American Federation 
of Labor before the Interstate Commerce Committee, asserted 
that he could not underwrite any measure that would " abso- 
lutely prevent a general railroad strike," and that he would 
rather see the " country inconvenienced than the slavery this 



PROGRAM OF POLITICAL RECONSTRUCTION 297 

bill would cause." The issue was thus raised whether in the 
case of an industry so closely affecting the country's vital needs 
Congress might undertake to protect the public against the 
possible unreasonable demands of organized labor as well as 
against the arbitrary decisions of the owners themselves. The 
solution reached in the Esch-Cummins bill consists in the crea- 
tion of a Labor Board of nine members, to be appointed by 
the President, which is to have advisory power over wages, 
hours, and conditions of work. The Labor Board is to rep- 
resent equally the public, the employers, and the employees, 
and while no element of compulsion enters into its awards, 
reliance is apparently placed upon public opinion to enforce 
the acceptance of its decisions. The idea of compulsory arbi- 
tration in the sense of making the awards of the court binding 
upon the parties, so as to authorize the Government to compel 
their execution, is foreign to American traditions. But com- 
pulsory public hearings before strikes are called, with general 
public opinion as the sanction of the observance of the award, 
are necessary to the protection of the public in its dependence 
upon vital industries. 



CHAPTER XII 

THE PROGRAM OF INTERNATIONAL RECONSTRUCTION 

Effect of the war upon international relations. Changed 
position of the United States. It is impossible to outline 
the problems of political reconstruction in the United States 
created by the war without reference to the changes that 
must inevitably be brought about in the foreign policies, 
and to some extent in the domestic policies of the country, 
by the new international relationships established among 
the states of the world. Even though the Senate has re- 
fused to ratify the treaty of peace with Germany with the 
Covenant of the League of Nations attached to it, it is clear 
that the participation of the United States in some form of 
international organization to maintain the peace of the world 
will continue to be a pressing issue in the years to come. 
Prior to the war the United States had lived in a state of 
political isolation from the great powers of Europe, moving 
in a sphere of its own outside the orbit of their alliances and 
their common councils. Side by side, however, with this policy 
of political isolation there had developed a policy of economic 
internationalism based upon the existing facts of world trade, 
just as the political attitude had been based upon traditions 
inherited from the days of Washington. It remained for the 
war to show the inconsistency of the two positions. The 
central incident attending its outbreak struck at the very foun- 
dations of the system of political isolation. For it placed the 
United States in the position of being a silent and inactive on- 
looker in the presence of a flagrant breach of international 
good faith. The moral reaction of the country against the 
violation of the neutrality of Belgium was soon followed by a 

298 



INTERNATIONAL RECONSTRUCTION 299 

sharp realization that its economic interests were being vitally 
affected by the conflict, while the lives of its citizens were en- 
dangered by modern methods of warfare at sea. At the same 
time altruistic motives were aroused when the Government 
undertook to play the part of mediator between the belliger- 
ents by projxjsing a statement of the terms upon which they 
would be willing to conclude peace. The subsequent partici- 
pation of the United States in the war led to successive state- 
ments of the principles of a just peace and of the necessity 
of an organization to make them effective. When, however, 
the negotiations of the peace conference resulted in the creation 
of the League of Nations as an integral part of the several 
treaties of peace, opposition of the sharpest character de- 
veloped. The dual function assigned to the League, of be- 
ing at once the administrator of the provisions of the treaties 
and the potential guarantor of the future peace of the world, 
aligned against the Covenant both the smaller number of those 
who were opposed to the specific provisions of the treaty of 
peace with Germany and the larger number of those who were 
opposed to the participation of the United States in the League 
whether in the form proposed or in any form whatever. 
Earlier test votes as well as the final vote by which the treaty 
failed of ratification on March 19 showed a large majority 
in favor of the general principle represented by the Covenant 
of the League, a majority, less than the necessary two-thirds, 
in favor of the actual League, subject to a series of qualify- 
ing reservations, a minority standing fast on the Covenant with- 
out reservations affecting its substance, and a small group of 
" irreconcilables " who were opposed to the League in principle. 
The result was a victory for the " irreconcilables," constituting 
less than one-fifth of the total vote of the Senate. 

The principle of state sovereignty. The repudiation, 
therefore, by the Senate of the Covenant of the League of 
Nations still leaves intact the general principles upon which 
the League is based ; and in consequence it remains an im- 
portant problem of reconstruction to determine to what extent 



300 POLITICAL SYSTEMS IN TRANSITION 

these new principles are to limit or restrict the powers con- 
ferred by the Constitution upon the several agencies of the 
United States Government. The fundamental conception of 
the new order of international relationships is that of the 
collective responsibility of the nations at large for the peace 
of the world. Before 1914 the dominant principle of inter- 
national law was to be found in the mutual recognition by 
the nations of their individual sovereignty. Precisely what 
was meant by the term " sovereignty " is difficult to determine, 
owing to the fact that the theory of international law and the 
facts of international life were not in harmony. As a legal 
theory sovereignty called for the supreme right of the state 
to direct the administration of its internal affairs and to deter- 
mine the character of its foreign policies without interference 
from other states. But it is obvious that the theory assumed 
an independence of action which was daily contradicted by the 
facts of international intercourse. In numerous details the 
hands of the nations were bound by an elaborate array of 
treaties and customs, which were wholly inconsistent with the 
strict theory of state sovereignty. But these treaties and cus- 
toms related merely to the lesser interests of the nations. In 
matters involving national self-protection or important com- 
mercial policies the abstract theory of sovereignty was seen 
to be an actual reality. The United States, with other nations, 
reserved to itself complete freedom of action in the determina- 
tion of the measures upon which it believed its security and 
prosperity to depend. In respect to these questions the sover- 
eign state undertook to determine for itself the validity of 
its own claims of right. If a dispute arose between itself 
and another state involving such matters, it remained for the 
individual state to decide whether it would submit the case 
to arbitration, and if so, upon what conditions. The result 
of this doctrine of sovereignty was that the authority of in- 
ternational law remained of a very limited character. On the 
most important problems of international relations there was 
no rule of conduct to be found, and even in respect to those 



INTERNATIONAL RECONSTRUCTION 301 

questions upon which a rule of law existed each nation re- 
mained the interpreter of its own rights and obligations in 
the case. 

National armaments and international anarchy. Con- 
sistently with the principle which made each nation the ulti- 
mate arbiter of its own rights and obligations, each nation 
undertook to rely solely upon its own efforts to maintain what 
it claimed as justly due to it. Individual self -protection 
was the logical corollary of individual self-determination of 
rights. War thus became a legal remedy, and the results ob- 
tained by a successful war acquired legal validity in spite of 
the fact that force had been used to secure them. What should 
be the measure of the armaments maintained by each state for 
alleged purposes of self-defense was, like the question of the 
propriety of their use, left to the individual nation to decide. 
Each government took counsel with itself as to its needs and 
as to its financial resources and struck a balance between 
them. Where national resources were inadequate, the state 
sought alliances with other states similarly situated, and these 
alliances were in turn met by counter-alliances of opposing 
groups. A " balance of power " was thus secured, which af- 
forded a measure of security so long as the equilibrium could 
be kept stable. The resulting situation can without exag- 
geration be described as a condition of international anarchy. 
There was a complete lack of a sense of collective responsibility 
.on the part of the nations as a body. The dominant concep- 
tion of national law, that the protection of the rights of the 
individual citizen is best attained by the cooperative action 
of the community in establishing common agencies of justice, 
did not enter into the code of international law. On many 
of the important questions of diplomacy which arose during the 
generation preceding the war the leading nations of Europe 
and America entertained similar conceptions of justice and 
right, but practically no attempt was made to coordinate those 
conceptions and construct from them a collective international 
judgment. In consequence, the crisis which arose with such 



302 POLITICAL SYSTEMS IN TRANSITION 

dramatic suddenness in July, 1914, found the nations com- 
pletely lacking not only in an organization to make their com- 
mon judgment effective, but even in the conviction of an ob- 
ligation to act in concert for the maintenance of peace. It 
was therefore legally possible for the United States, in the 
presence of a clear and gross violation of international law, 
to issue a declaration of neutrality and assume a position of 
official indifference to the outcome of the war. 

Collective responsibility under a League of Nations. The 
subsequent abandonment by the United States of its neutral 
position, while primarily brought about by the ruthless attack 
upon its rights by one of the belligerents, was undoubtedly 
made possible by the realization on the part of the American 
people of the fundamentally illogical character of international 
law. The neutrality of third parties in the presence of public 
crime was a position so completely at variance with the primary 
conception of law and order that it could not but provoke 
general condemnation. At the same time it was clear that the 
American people would not relinquish their traditional atti- 
tude towards the political controversies of Europe except in 
connection with some general plan for preventing those contro- 
versies from culminating in war. American intervention in 
Europe must take the form of supporting measures to prevent 
the commission of acts of injustice, not of waiting until wars 
had broken out and then taking sides against the aggressor. 
If the principle of collective responsibility was to take the 
place of the old legalized anarchy, it must be supplemented 
by an organization capable of expressing the common judg- 
ment of the nations as a body upon questions in dispute be- 
tween individual states, and capable of bringing the common 
will of the nations to bear effectively upon the contending 
parties. This necessary connection between a new principle 
of international relations and an organization to make it effec- 
tive found formal expression in the Covenant of the League 
of Nations; and in spite of the present failure of the United 
States to participate in the League because of difficulties aris- 



INTERNATIONAL RECONSTRUCTION 303 

ing from the concrete functions of the League it is beheved 
that the principle of collective responsibility which the League 
embodies has been generally accepted by the American people. 
Article XI of the Covenant states in explicit terms that " any 
war or threat of war, whether immediately affecting any of 
the high contracting parties or not, is hereby declared a matter 
of concern to the League." Wars and threats of wars have, 
indeed, always been a matter of concern to the nations individu- 
ally; they are here declared to be of concern to the nations 
in their collective capacity as members of the League. Again 
in Article XVI it is laid down that if any of the contracting 
parties should break the agreements to arbitrate contained in 
Article XII it shall thereby " ipso facto be deemed to have 
committed an act of war against all the other members of the 
League." None of the reservations which prevented the final 
ratification of the treaty of peace repudiated the principle of 
collective responsibility here recognized. Even the guarantee 
contained in Article X, by which the members of the League 
agreed " to respect and preserve as against external aggression 
the territorial integrity and existing political independence of 
all the members of the League," was not rejected because of 
the principle of mutual protection involved, but merely be- 
cause of doubts as to the possible application of the principle. 
It was believed that the guarantee might have the effect of con- 
firming existing territorial possessions in certain cases, such as 
that of Ireland or of Shantung, where they were believed to 
involve injustice, and of committing Congress to a declaration 
of war without its prior consent in each case. It is true, how- 
ever, that the reservation by which the United States retains 
the right to decide for itself what questions are within its do- 
mestic jurisdiction, together with the elaborate enumeration of 
those questions, seriously narrows the application of the prin- 
ciple of collective responsibility, and leaves it not altogether 
certain whether the principle itself has not been repudiated in 
conceding to it so limited a field in which to operate. 



304 POLITICAL SYSTEMS IN TRANSITION 

Conditions of success of an international organization to 
maintain peace. In view of present conditions any estimate 
of the part which the United States may in time come to play, 
under altered circumstances, in the development of an inter- 
national organization to give effect to the principle of collec- 
tive responsibility would be apart from the concrete problems 
raised by the present study. But this does not dispense us 
from the necessity of examining briefly the conditions upon 
which such an organization must depend for its success, as 
well as the effect which those conditions must have upon the 
agencies of government within the individual states composing 
the future league. For while the Senate has been unable to 
agree upon the terms upon which it would be willing to have 
the United States become a member of the present League, jt is 
clear that the participation of the United States in an amended 
form of the League must continue to be a leading issue 
in the policies of the great political parties, and must find 
expression in the party platforms and in the campaign ad- 
dresses which are part of the political education of the Amer- 
ican voter.^ This examination of the conditions of success of 
an international organization for the maintenance of peace is 
all the more important because of the fact that there appears 
to be a widespread misunderstanding of the true character of 
a league of nations. Many who reject the present League 
profess to believe in an ideal league, a league which shall be 
effective to prevent war and yet not encroach upon national 
sovereignty, a league which shall settle disputes between the 
nations on a basis of justice and yet call for no sacrifices 
from the individual members and leave them untrammelled in 

1 Since the above was written the Republican Party, at its National 
Convention at Chicago, adopted a platform in which, while repudiating 
the Covenant of the League of Nations as signed by the President at 
Paris, the party proclaims itself in favor of an international association 
" which shall maintain the rule of public right by development of law 
and the decisions of impartial courts and which shall secure instant and 
general international conference whenever peace shall be threatened by 
political action." 



INTERNATIONAL RECONSTRUCTION 305 

the control of all matters which they at present regard as 
domestic interests. It will be found, however, that many of 
the objections which have been raised against the present 
League hold with equal weight against any form of interna- 
tional organization which has a similar object in view; and 
unless these objections are fairly met the discussions of ideal 
and actual leagues will lead to no tangible result. 

Restrictions upon "sovereignty." In the first place no 
international organization is possible which does not encroach 
to some degree upon the sovereignty of its member states. 
Even as understood in the recent past sovereignty did not ex- 
clude numerous restrictions upon arbitrary conduct ; but, as 
we have seen, the restrictions bore only upon the lesser interests 
of the nations. In the future it is clear that each step in 
the direction of restraining the free will of the individual state 
through the agencies of arbitration must to a corresponding 
degree narrow the field in which sovereignty may operate. 
To advocate a league which is " compatible with the sover- 
eignty of the United States " is either to demand things which 
are mutually exclusive, or else to use the term sovereignty in 
a more restricted sense than international law has attributed 
to it in the past. If by sovereignty is meant local autonomy, 
the right of each state to decide for itself matters of purely 
domestic concern and to follow its own ideals of national 
progress without interference from other states, it may still be 
possible to speak of a league of sovereign states.^ But if 
'sovereignty is to include the whole range of domestic and 
foreign policies, even where those policies come into conflict 
with those of other states, it is obvious that there is no com- 
patibility between sovereignty and the fundamental conception 
of a league of nations. The reservation adopted by a major- 
ity of the Senate which declared that " all domestic and polit- 

iThe reader will recall the curious illusion which led to the an- 
nouncement in the Articles of Confederation of 1781 that "each State 
retains its sovereigntj^ freedom, and independence." Subsequent pro- 
visions contained a practical negative on each point. 



3o6 POLITICAL SYSTEMS IN TRANSITION 

ical questions relating wholly or in part to its internal affairs, 
including immigration, labor, coastwise traffic, the tariff, com- 
merce, the suppression of traffic in women and children, and 
in opium and other dangerous drugs, are solely within the 
jurisdiction of the United States and are not under this treaty 
to be submitted in any way either to arbitration or to the 
consideration of the Council or of the Assembly of the League 
of Nations " came close to an assertion of unlimited sover- 
eignty. Similar reservations adopted by the other powers as 
a condition of entering the proposed League would practically 
negative the working powers of the League. In like manner 
a reservation by each member of the League of its own equiva- 
lent of the American Monroe Doctrine would carve out from 
the jurisdiction of the League those very problems which if 
left to the arbitrary judgment of the individual state must 
result in war. It may well be that under the present political 
conditions of Europe a majority of the Senate, perhaps of the 
people of the United States, are unwilling to entrust to the 
Council or the Assembly of the League the questions set forth 
in the reservation ; but unless it is recognized that all questions 
which affect the peace of the world, whether belonging to the 
class traditionally called domestic or not, are properly a sub- 
ject for international inquiry and arbitration, it is futile to 
talk of a future and better league of nations. The terms 
" super-state," " international government," " international 
federation," appear to be obnoxious even to those who favor 
an organized society of nations. Yet the facts represented by 
those terms must ultimately be faced as an essential condition 
of " collective responsibility " when reduced to a concrete 
working basis. 

The need of international legislation. The fundamental 
problem which any form of international organization must 
sooner or later take up is the creation of a clearer and more 
cpmprehensive code of international rights and duties. Many 
of the international disputes that have arisen in the past have 
been due not so much to an unwillingness on the part of the 



INTERNATIONAL RECONSTRUCTION 307 

nations to abide by the law as to the absence of any clear 
rule by which their conflicting claims might be judged. Inter- 
national law has been allowed to develop by the slow growth 
of custom and by the conclusion of separate treaties between 
individual nations. The international conferences that met at 
The Hague in 1899 and 1907, which might have enlarged the 
domain of international law and laid the basis of a construc- 
tive code of rights and duties, limited their activities to pro- 
jects of voluntary arbitration and to restrictions upon the con- 
duct of war. The result was that the most fundamental rights 
of national existence either remained outside the code of inter- 
national law, or were covered by such general principles as to 
afford no adequate basis of adjustment in cases of conflict. 
The right of self-preservation remained in as primitive a form 
as in the days of self-help between private individuals. Self- 
protection justified intervention in the affairs of another state, 
but it was not clear under what circumstances this right might 
be exercised. Self-defense justified national armaments, but 
there were no limitations as to the size of such armaments, 
and alleged self-defense easily became a cover for designs of 
aggression. The self-determination of nationalities was not 
recognized as a principle in the creation of new states; the 
right to abate a nuisance was unknown as a rule of law; 
and the right to protect citizens in foreign countries was so 
uncertain as to give rise to frequent disputes. To an even 
greater degree the economic interests of the nations remained 
outside the scope of international law. A nation lacking the 
raw materials of industry struggled as best it might to ob- 
tain them from other more favored nations ; exclusive control 
of the resources of undeveloped nations became a legitimate 
object of national policy; while foreign markets for the sur- 
plus products of industry and favorable opportunities for the 
investment of capital became the object of the sharpest com- 
petition. In the face of these facts it cannot be doubted that 
the first step in the development of an effective league of 
nations must be the provision for some form of international 



3o8 POUTICAL SYSTEMS IN TRANSITION 

legislature which shall undertake the task of framing a con- 
structive code of law governing the political and economic 
rivalries of the nations. Obviously such a code, even in its 
first most tentative form, must restrict to some degree the 
legislative powers of national parliaments. To those who be- 
lieve in the principle of " a governed world " the question is, 
in reality, not whether an attempt shall be made to formulate 
new rules of law to take the place of the existing political 
and economic anarchy, but merely whether the rules adopted 
by the legislative agency of the international organization shall 
require the ratification of Congress before they can become 
binding upon the United States. On this point it need only 
be said that so long as the central parliament of the nations 
is not a parliament of the peoples, but of delegates appointed 
by the Governments of the several states, it can scarcely be 
expected that its enactments would be accepted by the nations 
as binding upon them without the express consent of their 
national legislatures in each case. In spite of the delays and 
evasions incident to individual ratification by each state, at 
the present stage of international development it is not feasible 
to demand that agreements reached by an international as- 
sembly should have the final and authoritative force of national 
statutory law. 

The scope of arbitration. The progress of international 
arbitration must depend in large part upon the development 
of a code of substantive law. Not that in the absence of a 
clear rule of rights and duties it is not possible for the nations 
to submit to inquiry and arbitration disputes that arise be- 
tween them, in the hope that a principle of justice may be 
found to fit the case in hand ; but that the clearer the mutual 
rights and duties of the nations become the fewer disputes 
will arise between them and the less often will there be a 
claim that a particular dispute involves the honor or the vital 
interests of the nations involved. The plan of an international 
court having general and compulsory jurisdiction over the dis- 
putes of the nations, in the same way that suits between citi- 



INTERNATIONAL RECONSTRUCTION 309 

zens are submitted to the jurisdiction of national courts, has 
thus far always been regarded by statesmen as impracticable 
in a world of nations so diverse in political character and 
material interests. The Second Hague Conference succeeded 
in registering a general approval of " the principle of com- 
pulsory arbitration," but could not reach an agreement mak- 
ing the principle applicable even to a limited range of cases. 
The general arbitration treaties which the United States has 
from time to time entered into have regularly left some loop- 
hole by which the Government might evade the necessity of 
arbitrating a particular dispute should it deem it inexpedient 
to do so. The Root treaties of 1908 made a specific exception 
of disputes affecting " the vital interests, the independence, or 
the honor of the two contracting states." The Taft or Knox 
treaties of 191 1 divided disputes into such as were "justiciable 
in their nature " and such as were not justiciable, the latter 
being excepted from the obligation to arbitrate. The Bryan 
treaties omitted the distinction between the character of the 
disputes, but imposed no other obligation upon the parties 
than to refrain from declaring war pending the investigation 
and report of an international commission. Even the Covenant 
of the League of Nations does no more than follow the Bryan 
treaties in requiring its members not to resort to war pend- 
ing the submission of a dispute to inquiry or to arbitration ; 
and no obligation is imposed to accept the award rendered 
except the negative obligation of not making war upon a state 
■which complies with the recommendations made by the Council 
or the Assembly. Questions within the domestic jurisdiction 
of one or other of the parties are excluded from the obliga- 
tion to arbitrate, but the decision as to whether a particular 
dispute falls within that class is entrusted to the Council 
of the League. 

Objections to compulsory arbitration. That the difficulties 
in the way of general and compulsory arbitration are very 
real ones cannot be denied. For the most part they are due, 
as we have seen, to the absence of a definite code of inter- 



3IO POLITICAL SYSTEMS IN TRANSITION 

national rights and duties, which is in turn due to the marked 
diversities of national character and of political and economic 
interests which exist among the states of the world. Equality 
before the law is a principle difficult of application in a world 
consisting of some forty-six states, large and small, of vary- 
ing degrees of material progress, and the different ideals of 
civilization. Thus far little attempt has been made to cut 
across state boundaries by the formulation of fundamental 
interests common to the nations of the world as a body; and 
such efforts as have been made in that direction have been 
popularly discredited by their association with radical labor 
movements.^ Yet until such a basis of common fundamental 
interests can be laid, and until confidence has been created that 
justice can be better obtained by the impartial decision of an 
international tribunal than by resort to individual self-help, it 
is not to be expected that the nations will agree to submit their 
disputes to arbitration without exception of the character of 
the interests involved and pledge themselves in advance to 
carry out the award of the court. For the present no more 
can be hoped than that courts of optional jurisdiction may 
be established, before which disputes can be brought and sub- 
jected to discussion in the light of such general principles of 
justice as prevail among the nations. A more permanent court 
has been proposed for the settlem.ent of disputes readily sus- 
ceptible of a legal decision, leaving the so-called " political " 
disputes to the decision of temporary arbitration tribunals 
chosen by the contending parties for the particular case in 
hand. Ultimately it may be possible to introduce into inter- 
national law the rule of national law which admits no ex- 

1 It is not overlooked that there have been many international liter- 
ary and scientific associations of a private character whose activities 
have helped to draw together persons of similar interests, and that 
there are in existence international administrative agencies, such as 
the Universal Postal Union, created by the states themselves for the 
purpose of regulating matters of common convenience; but in neither 
case do the subjects involved reach to those more vital interests which 
are the real causes of international conflict. 



INTERNATIONAL RECONSTRUCTION 311 

ceptions from the obligation to arbitrate. In the meantime 
it must at least be recognized that the reservation by the 
Senate from the jurisdiction of the international court of the 
wide range of questions above enumerated can be justified 
only as a temporary policy, and that it is inconsistent with the 
basic principle of an effective league of nations. It is only by 
a gradual approximation to those fundamental conceptions 
of law which have brought orderly government within national 
boundaries that international law can become adequate to off- 
set the forces that make for war. 

National armaments and international execution. Inti- 
mately associated with the problem of formulating a code of 
rights and duties and of providing courts for the settlement 
of conflicting claims is the question of providing an effective 
sanction for the rule of law thus adopted. Hitherto inter- 
national law has been lacking in any sanction for its rules 
other than the moral sanction of the approval or disapproval 
of unorganized public opinion in the several nations. There 
has been no executive body whose duty it was to give effect 
even to the lesser rules which had come to be recognized as 
binding by custom or which had been adopted by treaty. But 
while it has long been recognized in principle that some co- 
ordinated action on the part of the nations as a body was 
needed to restrain individual offenders against the law, the 
alliances and counter-alliances of Europe have made even the 
most tentative steps towards such cooperation appear imprac- 
ticable. The Covenant of the League of Nations meets the 
need of a physical sanction of international law by authorizing 
two limited forms of concerted action: Article XVI provides 
that a breach of the agreement to arbitrate shall be regarded 
as an act of war against all the other members of the League, 
and shall be followed by a " severance of all trade or financial 
relations " between the members of the League and the offend- 
ing state. Should this economic boycott prove ineffectual, or 
should it require the support of armed forces, the Council 
of the League is authorized in such cases to recommend to 



312 POLITICAL SYSTEMS IN TRANSITION 

the several governments concerned " what effective mihtary 
or naval force the members of the League shall severally con- 
tribute to the armed forces to be used to protect the cove- 
nants of the League." Whatever criticism may be directed 
against the dangers to which these two forms of international 
sanction might give rise under present conditions, no advo- 
cate of an international organization for the maintenance of 
peace can fail to realize that the principle of cooperation upon 
which they are based is sound. Competitive armaments are 
directly at variance with the principle of collective responsi- 
bility. Yet no progress can be made in the direction of reduc- 
ing national armaments until evidence is forthcoming that the 
international organization will be able to afford to its members 
a measure of protection equivalent to that which they believe 
themselves to possess in their own individual armies and 
navies.^ This protection in turn can only be obtained on the 

^ It is instructive to note that in December, 191 9, the General Board 
of the United States Navy recommended that unless some limitation 
be placed upon the si/^e of armaments by international agreements or 
through the League of Nations, the American navy should be gradu- 
ally increased until it should ultimately be " equal to the most power- 
ful maintained by any other nation of the world." This increase was 
justified on the ground that " the United States borders upon two 
oceans and the protection of our coasts, together with the great in- 
crease in our merchant marine, renders necessary the possession of a 
navy by the United States large enough to protect our national inter- 
ests in both oceans." The recommendation of the General Board 
has been somewhat discredited by an earlier statement to the same 
effect by the Secretary of the Navy which was popularly interpreted 
as an attempt to coerce the powers of Europe to assist in the creation 
of the League of Nations. A similar policy was, however, adopted in 
1916 by the Sixty-fifth Congress. In the naval appropriation act of 
that year it was declared that it was the policy of the United States 
to settle its international disputes through mediation and arbitration, 
and that the United States looked with apprehension upon a general 
increase of armament throughout the world, but realized that no 
single nation could disarm in the absence of a common agreement of 
the great powers. The act then recited that, if at any time before the 
construction authorized should have been contracted for, there should 
be established, with the cooperation of the United States, an interna- 



INTERNATIONAL RECONSTRUCTION 313 

assumption that the nations recognize a dominant interest com- 
mon to them all, and the necessity of collective action to se- 
cure it. Cooperation to maintain peace on a basis of accepted 
principles of justice becomes, therefore, the starting-point of 
any effective plans of disarmament. Once more we are 
brought round to the primary problem of creating a more 
definite understanding of international rights and duties. The 
persistent distrust of an international executive body is largely 
due to uncertainty as to the purposes for which it might be 
used. The bitter attacks in the Senate upon Article X of the 
Covenant of the League, which guarantees the territorial in- 
tegrity and existing political independence of the members of 
the League, as well as the attacks upon Article XVI, which 
provides for the economic boycott and possible military action, 
were for the most part based upon the fear lest the United 
States might be called upon to cooperate in carrying out 
some decision of the League to which it could not give its 
approval. For the time being a conditional obligation, sub- 
jecting the decisions of the League to the ratification of the 
national Congress, would seem to be the furthest step which 
the public at large is prepared to take. 

Primary condition of international organization. The 
primary condition of the success of any international organ- 
ization for the maintenance of peace is, therefore, the recogni- 
tion by the nations of the preeminent importance of the object 
to be attained and the necessity of mutual and coordinated 
measures to attain it. A common interest on the part of the 
nations in law and order must be supplemented by a collective 

tional tribunal " which shall render unnecessary the maintenance of 
competitive armaments, then and in that case such naval expenditures 
as may be inconsistent with the engagements made in the establish- 
ment of such tribunal or tribunals may be suspended, when so or- 
dered by the President of the United States." The limitation of arma- 
ments does not, it is true, of itself imply the abandonment of indi- 
vidual self-defense in favor of collective action; but conversely the 
connection between the two, if the experience of national govern- 
ments can be relied upon, is very close. 



314 POLITICAL SYSTEMS IN TRANSITION 

responsibility in the establishment and maintenance of the in- 
stitutions and agencies needed to secure the desired object. 
This collective responsibility implies the repudiation of the 
old theory of sovereignty which made each state the ultimate 
arbiter of its own claims and obligations and the ultimate 
guardian of its own interests. The prevailing condition of 
anarchy in respect to many of the fundamental rights and 
duties of nations must give way to a constructive code of 
law. A tentative division must be made between those in- 
ternal and domestic interests, which are essential to national 
self-government, and those external interests which are the 
grounds of dispute between nations, and which must be ad- 
justed on the basis of the welfare of the nations as a whole 
as against the selfish interest of the individual state. With 
the gradual growth of such a constructive code of law the 
scope of international arbitration must be extended to cover 
disputes of whatever nature that cannot be settled by direct 
negotiation between the parties. The collective judgment of 
the nations as a body must be brought to bear upon the contro- 
versies which threaten a rupture of peaceful relations between 
two or more states. The resort to arbitration by the dispu- 
tants and the submission of the losing state to the award of 
the court must be enforced by the agencies of the international 
organization through the use of economic or military measures 
according to the needs of the case. These are the fundamental 
principles of any international organization which seeks to 
substitute law and order for the present international anarchy. 
That they must have important restrictive effects upon the pres- 
ent sovereign will of the United States, as well as of every 
other state, limiting in one way or another the legislative, 
executive, and judicial agencies of the Government, is de- 
manded by the nature of the cooperation they call for. 
Whether under present conditions it is expedient to create such 
an international organization, whether the League of Nations 
in its existing form offers a basis upon which to build the 
more effective agency required to meet the needs of the world, 



INTERNATIONAL RECONSTRUCTION 315 

are debatable issues. What is clear and indisputable is that at 
no time, whether under happier or less favorable auspices than 
at present, can international law in the true sense of law replace 
the existing anarchy except at the cost of some concession of 
the traditional national sovereignty and the old arbitrary de- 
cision by each nation of what are called " political " questions. 
The conversion of public opinion into law. The problem 
of international reconstruction is obviously larger than the 
mere formulation of a covenant or the creation of legal 
agencies to give effect to its provisions. The history of na- 
tional governments has made it sufficiently clear that programs 
and institutions have in themselves no saving grace, and that 
they can but depend for their successful operation upon the 
spirit of friendly cooperation which animates them. Between 
nations as between individuals self-restraint and mutual for- 
bearance are essential conditions of reaching an adjustment of 
conflicting aspirations and policies. No one can witness to- 
day the struggle which is going on between the nations for 
the possession of the raw materials of industry, for new 
markets for surplus products, for favorable opportunities for 
the investment of capital in undeveloped countries, without 
realizing the many obstacles that lie in the way of effective in- 
ternational organization. Mutual concessions must be made 
and material interests sacrificed, if any appreciable progress is 
to be made. The narrow nationalism which seeks to pro- 
mote the welfare of the individual state at whatever cost to 
others must be replaced by a willingness to share in a pros- 
perity primarily accruing to the world at large. The ideal 
of a " governed world " can only be attained at the price of 
some temporary, perhaps even permanent, loss of direct na- 
tional advantage. Assuming a recognition by the nations of 
the necessity of such sacrifices, it would seem imperative that 
the first step must be taken towards creating definite institu- 
tions which may give concrete expression to those ideals. 
Some form of political organization must be set up which shall 
provide a meeting-place for the representatives of the nations. 



3i6 POLITICAL SYSTEMS IN TRANSITION 

where the forces which in different countries seek the same 
ideal may be directed to tlieir common purpose, and where 
legal validity may be given to organized public opinion. 
Agencies must be created to which a larger measure of juris- 
diction may by degrees be granted according to the promise 
which they give of effective operation. To await the creation 
of an ideal League before being willing to participate in it 
is to turn one's back on the experience of political develop- 
ment within national boundaries. 



INDEX 



Abrams v. United States, 174. 

Advisory Commission to Council 
of National Defense, 188. 

Agricultural Production Stimula- 
tion Act, 153. 

Aliens, see Enemy Aliens. 

Alien Property Custodian, func- 
tions of, i8i. 

Allotments, see War Risk Insur- 
ance Act. 

Allowances, see War Risk Insur- 
ance Act. 

Americanization of aliens, state 
laws in aid of, 216-218. 

Arbitration of railway disputes, 
163. 

Arbitration, international, 308. 

Arver v. United States, 141. 

Austria-Hungary, break-up of, 59- 

63. 

Autocracy, initial advantage of in, 
time of war, 46; menace of, 47. 

Baty, T. and Morgan, J. H., 
"War, its Conduct and Legal 
Results," 91. 

Board of Mediation and Concilia- 
tion, 163. 

Bolsheviki, definition of, 72. 

Bolshevism, distinct from Soviet 
government, 72. 

Bonus bill, 149. 

Brailsford, H. N., " A League of 
Nations," 61, 62. 

British Constitution, character of, 

27. 
British Empire, changes in the 

Constitution of, 99. 
British government, in time of 

war, 74-98. 
Bryce, Lord, quoted, 92. 



Budget, proposed plan of a na- 
tional, 275. 

Bundesrat, influence of Prussia in, 
38. 

Burgess, J. W., " Political Science 
and Constitutional Law," 37. 

Burns, C. D., "Political Ideals," 
65. 

Cabinet government, in Great Brit- 
ain, 29; in time of war, 75- 
80 ; proposed introduction into 
United States, 269-271. 

Cabinets, instability of French, 22. 

Carroll, T. F., " Freedom of 
Speech and of the Press in War 
Time: the Espionage Act," 177. 

Censorship of press, refusal of 
Congress to provide for, 169- 
170; indirect, 170; constitution- 
ality of, 176. 

Centralization, of French admin- 
istrative system, 34; versus de- 
centralization, 256. 

Chafee, Z., " Freedom of Speech 
in War Time," 177. 

Checks and balances, in American 
government, 21 ; criticism of, 22; 
in France, 32. 

Civil Relief Act, see Soldiers and 
Sailors Civil Relief Act. 

Clemenceau, G., 104. 

Cleveland, F. A., " Democracy and 
Reconstruction," 277. 

Coal, price of, fixed by Committee 
on Coal Production, 158; re- 
strictions upon use of, 158-159; 
government operation of mines 
in Great Britain, 88-89; pro- 
posed government ownership of 
mines in United States, 293-294. 



317 



318 



INDEX 



Coalition Cabinet, in Great Brit- 
ain, yT, in France, 104. 

Cole, G. H. D., quoted, 96; "The 
World of Labor," 243. 

Collective responsibility under a 
league of nations, 302. 

Committee on Public Information, 
136; censorship functions per- 
formed by, 136, 170. 

Committee system in Congress, im- 
pediments resulting from, 199. 

Compensation, see War Risk In- 
surance Act. 

Congress, powers of, in time of 
war, 199 ; new powers needed by, 
258. 

Constitution, nature of a written, 
20. 

Constitutional government, in the 
United States, 18-24; in Great 
Britain, 24-30; in France, 30- 
34; in Germany, 36-40; in Rus- 
sia, 40-42. 

Constitution of the British Em- 
pire, 99-103. 

Constitution of the United States, 
in time of war, 115-116. 

Constitutional unpreparedness of 
the United States, iii. 

Copyrights, enemy, control of, 181. 

Corporations, use of subsidiary, 
201. 

Corwin, E. S., "The President's 
Control of Foreign Relations," 
281. 

Council of National Defense, crea- 
tion, organization, functions, 
188-191 ; criticism of, 190. 

Creel, G., 136. 

Crowder, E. H., "The Spirit of 
Selective Service," 213. 

Curtis, L., " The Problem of the 
Commonwealth," 102. 

Czechoslovakia, 60, 62, 232. 

Dakota Central Telegraph Com- 
pany v. South Dakota, 206. 
Debs v. United States, 173. 



Declaration of Independence, re- 
lation to self-government and 
self-determination, 14-15. 

Defense of the Realm Act, 90-92. 

Democracy, test of by war, 4-5; 
and efficient government, 7-9; 
individual character of in dif- 
ferent countries, 12; in the 
United States, 13, 15; in Great 
Britain, 24; in France, 30; in- 
dustrial, 235-243; and freedom 
of speech, 251-253. 

Democratic control over foreign 
affairs, 253-254, 281. 

Division of Conciliation, Depart- 
ment of Labor, 163. 

Draft Act of 1863, 142-143. 

Duguit, L., " Manuel de Droit 
Constitutionnel," 104. 

Duma, powers of, 42; electoral 
system of, 67. 

Efficiency, in a democracy, 7; in 

time of war, 8. 
Emergency Fleet Corporation, 

151-152. 
Enemy aliens, 179-182. 
Espionage Act, 168-173. 
Espionage laws, of the several 

States, 218. 

Fairlie, J. A., "Administrative 
Legislation," 133 ; " British War 
Administration," 78 ; " National 
Administration of the United 
States of America," 124-125. 

Federalism, in the United States, 
18-20, 257-258 ; in Germany, 55 ; 
in Russia, yz \ in the British 
Empire, 100-103 ; as a world 
problem, 266-267. 

Fong Yue Ting v. United States, 
116. 

Food Administration, activities of, 
156-158. 

Food and Fuel Control Act, 153. 

Food Stimulation Act, 153. 

Ford, H. J., "The War and the 



INDEX 



319 



Constitution," 113, 187, 2'J2\ "A 
Program of Responsible Democ- 
racy," 270. 

Four-Minute Men, 137. 

French government, democratic 
character of, 30; checks and bal- 
ances in, 32; administrative sys- 
tem of, 34; in time of war, 103- 
107. 

Frohwerk v. United States, 173. 

Fuel, restrictions upon the use of, 

158-159. 
Fuel Administration, activities of, 

158-159- 

Garner, J. W., " Administrative 
Reform in France," 34. 

General Munitions Board of Coun- 
cil of National Defense, 150. 

Germany, constitutional govern- 
ment in, 35-40; state socialism 
in, 48-51 ; new constitution of, 

53-59- 

Gompers, S., 164. 

Good Budget bill, 275. 

Goodnow, F. J., " Principles of 
Constitutional Government," 33. 

Governors, conferences of state, 
223-225. 

Gray, H. L., " War Time Control 
of Industry," 87. 

Great Britain, constitutional gov- 
ernment in, 24-30; government 
of, in time of war, 74-98. 

Guild Socialism, 243;!. 



Howe, F. C, " Socialized Ger- 
many," 49. 

Individual rights, protection of by 
the Constitution, 23. 

Industrial Conference, 238. 

Industrial councils, in Germany, 
57- 

Industrial democracy, meaning of, 
235-238 ; attitude of various rad- 
ical groups towards, 239-241. 

Insurance, Soldiers' and Sailors', 
see War Risk Insurance Act. 

International anarchy, 301. 

International arbitration, scope of, 
308-309; objections to compul- 
sory, 309-311. 

International execution, in rela- 
tion to national armaments, 311- 
313- 

International legislation, need of, 
306-308. 

International organization, condi- 
tions of success of, 303-304. 

International relations, effect of 
the war upon, 298. 

I. W. W., industrial theory of, 
241. 

Jones Merchant Marine Act, 295. 
Jugoslavia, 60, 63, 130. 

Kaiser, powers of, 2,7- 

Kenyon Americanization bill, 218. 

Knox V. Lee, 117. 



Hamilton, Alexander, on powers 
of Congress in time of war, 120 ; 
on powers of the Executive, 185. 

Hamilton v. Kentucky Distilleries 
and Warehouse Company, 121, 

154- 

Hammond, M. B., " British Labor 
Conditions and Legislation dur- 
ing the War," 90. 

Henderson, A., " The Aims of La- 
bor," 94, 95- 



Labor, in time of war, in Great 
Britain, 89-90; in the United 
States, 162-168; laws of the sev- 
eral states, 215-216. 

Labor Party, in Great Britain, 94- 
96; program of reconstruction 
of, 94. 

Lavell, C. F., " Reconstruction and 
National Life," 12. 

League of Nations, 298-304, 311- 
314- 



320 



INDEX 



Leaving certificates, in Great Brit- 
ain, 89. 

Lever Act, see Food and Fuel 
Control Act. 

Licencing system, 200. 

Lincoln, President, powers as- 
sumed by during the Civil War, 
126. 

Lippincott, L, " Problems of Re- 
construction," 157, 159 

Lloyd-George, D., head of War 
Cabinet, 78, 



McCall, S. W., "The Business of 
Congress," 269. 

Machinery-of-Government Com- 
mittee, 85. 

McKinley v. United States, 144. 

Mails, exclusion of publications 
from, in time of war, 176. 

Maine, Sir Henry, quoted, 47. 

Martial law, during the Civil War, 
126-127. 

Masses Publishing Company v. 
Patten, 176. 

Mathews, J. M., " Principles of 
State Administration," 224. 

Mediation Commission, Presi- 
dent's, 164. 

Merchant marine, government op- 
eration of, 294-295. 

Merchant Marine Act, 295. 

Milioukoff, P., " Russian Realities 
and Problems," 68. 

Military law, in Great Britain, 92. 

Militia, state, 125. 

Militia, State Reserve, 210. 

Milligan, ex parte, 121, 127. 

Ministry of Munitions, in Great 
Britain, 88 ; proposed, in the 
United States, 191-192. 

Ministry of Reconstruction, pro- 
gram of, in Great Britain, 96- 

^- .. 
Minorities, protection of, in new 

states, 61-62. 

Munitions of war, in Great Brit- 



ain, 88; in the United States, 

150-151. 

Munitions Standards Board, 150. 

Munro, W. B. and Holcombe, A. 
N., " The Constitution of the 
German Commonwealth," 58. 

Nagle, in re, 134. 
National Defense Act, 150. 
National Prohibition Act, 156, 208. 
National War Labor Board, 166. 
Northern Pacific Railway v. North 
Dakota, 206. 

Orage, A. R., ed., "National 

Guilds," 243. 
Overman Act, provisions of, 193- 

194. 

Parliament, in time of war, in 
Great Britain, 80-82; elections 
to, in 1918, 82; proposals for re- 
construction, 83 ; in France, 105- 
107. 

Patents, control of enemy, 181. 

Plumb Plan, proposed, 290-291. 

Political ideals, war a conflict of, 

5- _ 

lolitical theory, in relation to the 
constitution, 11. 

Politicus, " Many-Headed Democ- 
racies and the War," 47, 80. 

President, powers in time of war, 
123-139; as commander-in-chief, 
123-126; as agent of Congress, 
131 ; a one-man executive, 185 ; 
powers conferred upon by the 
Overman Act, 193-194. 

President's Mediation Commis- 
sion, 164. 

Press, censorship of, l6c>-i7o. 

Price-fixing, 150. 

Priorities, determination of, 151. 

Profiteering, need of federal con- 
trol over, 259. 

Prohibition, under guise of food 
conservation, 153-156; see War- 



INDEX 



321 



time Prohibition Act Volstead 
Act 
Prussian theory of government, 

35- 
Provost Marshal General, 212. 

Railroads, government control of 
in Great Britain, 88; govern- 
ment operation of, in the United 
States, 159; return of, to former 
owners, 288; problem of the, 
286-291. 

Reconstruction, problems of, in 
Great Lritain, 92-98; in the 
United States, 229-316. 

" Reconstruction, Select List of 
References on Economic," 98. 

Reichstag, democratic character 

of, 39. 

Reserve Militia, organization of, 
210. 

Rogers, L., " Problems of Recon- 
struction," 98. 

Root, E., speech on Panama Tolls 
Act 17- 

Ruppert V. Caflfey, 156, 

Russia, constitution in 1914, 40; 
revolution in, 64; new govern- 
ment of, 65-73. 

Sabotage Act see War Materials 
Destruction Act. 

Schenck v. United States, 172. 

Sedition Act 170-177; constitu- 
tionality of, 171-173- 

Sedition laws of the States, 218. 

Selective Service Act 140-143- 

Self-determination, enunciated in 
the Declaration of Independence, 
14 ; how far a principle of inter- 
national law, 231. 

Shipbuilding, control over, 151- 
152. 

Shipping Board, 151. 

Smith, Munro, " Military Strategy 
and Diplomacy," 52. 

Smith, R. H., "Justice and the 
Poor," 248. 



Smuts, General J., quoted, loi. 
Soldiers' and Sailors' Civil Relief 

Act 145- 
Sovereignty, of state, in relation 

to international organization, 

299-301. 
Soviet government, 68-73. 
State Constabularies, 210. 
State Councils of Defense, 221- 

222. 
State socialism, German, 48-51. 
Strikes, need of federal control 

over nation-wide, 260. 
Suffrage, extension of, in Great 

Britain, 93. 
Sutherland, G., " Constitutional 

Power and World Affairs," 119, 

174, 198. 

Telegraph system, operation of by 

government, 161-162. 
Telephone system, operation of by 

government 161-162. 
Toledo Newspaper Company v. 

United States, 172. 
Trading with the Enemy Act, 

177-178. 
Trusts, federal control over, 259, 

United States v, Casey, 144. 
United States v. Standard Brew- 
ery, 209. 

Vinogradoff, P., " Self-govern- 
ment in Russia," 67. 

Volstead Act, see National Prohi- 
bition Act. 

Voluntary agencies, advantages, 
249. 

Wages, standardization of, 166. 
War Cabinet, proposed, in the 

Unif^ed States, 192-193. 
War Finance Corporation, 151. 
War Industries Board, 150. 
War Labor Conference Board, i65'. 
War Labor Policies Board, 166. 



322 INDEX 

War Materials Destruction Act, Political Philosophy," 36 ; " Con- 

178, stitutional Law of the United 

War Risk Insurance Act, 146-149. States," 116, 131. 

Wheat, price-fixing of, 157. Wilson, President, political powers 

Whitley Report, 98, 237. exercised by, during war, 127- 

Willoughby, W. F., " Government 131 ; personal responsibility as- 

Organization in War Time and sumed by, 198. 

After," 151, 166, 191, 201 ; Wilson, Woodrow, " Constitu- 

" Problem of a National Bud- tional Government in the United 

get," 201, 276; "A National States," 197. 

Budget System," 276. Worsf old, B., " The Empire of the 

Willoughby, W. W., "Prussian Anvil," loi. 



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